A person must be considered mentally competent at the time of a will’s creation and execution. Because a will is meant to function in place of an individual who is incapacitated, it stands to reason that document must be made when that person is healthy.
A slightly more complicated question arises if a person wishes to change a will after being declared incompetent. Here we take a look at how probate court would handle both situations.
Evaluation of Mental Capacity
Determining mental capacity means three basic questions.
“Sound mind” is generally defined as having an understanding of what is going on around you. The other two questions involve closely related topics that have subtle differences. “Acting freely” means that the individual is not induced in any way to make a will. This is different from the third question, which is “acting willingly.” This question determines if an individual is writing the will under threat of harm – different from being induced.
Changing a Will
If a person wants to change a will, the three questions mentioned above must be asked again. The person must be mentally competent at the creation and the execution of the changes. Otherwise, the original will stands.
Additionally, the person cannot act under inducement or threat of harm. If a judge finds that changes in a will are made under these circumstances, then the original will stands.
The Importance of an Attorney
A trusted estate planning attorney can help a family avoid long, drawn out court battles about competence, inducement and duress. An attorney acting as intermediary for a will looks much better to a court and provides a witness for competence. If these standards are met, there is much less that a challenge will contest.
Attorneys with the foresight to include the opinion of a medical professional to determine competence are even more credible. If you are looking to create a will, make sure that you consider these professional consultations to avoid undue stress later on in the process.