For a legal document to be effective, the document’s signer must possess capacity. When we think about capacity to sign a will, we call it “testamentary capacity.” In Massachusetts, testamentary capacity requires that the person signing a will be aware in general of his or her property, their heirs, and what the act of signing a will means.
A person’s medical diagnoses can be helpful in determining whether they have capacity; however, the law only requires that a person have capacity at the moment they executed the document. For this reason, clients with waxing and waning mental states may be able to sign documents during periods of lucidity even if they have been diagnosed with dementia.
When a plan is noncontroversial, there is little likelihood that the plan of an older or forgetful client will be challenged. When making major changes like treating children unequally, there may be a significant risk of a will contest. An estate planning attorney in Marshfield, MA must consider whether their client has the requisite mental state to execute a will. In questionable cases, a careful attorney should take particular care not to allow a favored child or other person to play a large role in the planning process or to appear to pressure or unduly encourage the client.
If a client or an attorney anticipates a challenge to an estate plan on grounds of incapacity, the attorney may consider establishing a clear record for future review by a court. Interviewing the client privately without other family members present, asking questions about their estate and family, and documenting the interaction can be very helpful during future review. In some cases, a videotape of the signer could be helpful evidence of their capacity. A Marshfield wills and trust attorney and their client may want to discuss the use of an in terrorem clause in the will or trust to discourage challenges. Such clauses have the effect of canceling a devise (a gift) to a beneficiary who challenges the validity of the instrument in court.
Whether signing a will or trust, it is important to consider whether the signer has the capacity. Meeting with an attorney and signing documents while in good health is one of the best ways to mitigate the risk of being unable to sign a will or trust in the future. Schedule a free consultation with our Marshfield estate planning attorney if you or a loved one has concerns about capacity and signing an estate plan.