Estate Planning Mental Capacity
The primary requirement when signing a Last Will and Testament or other estate planning tool, is that the person signing it has sufficient mental capacity or competency to understand the document he or she is signing and its effect.
Basic Requirements for Last Will and Testament Signing
- person must be at least 18 years old;
- of sound mind;
- has an understanding and recollects the nature and situation of his or her property;
- remembers and understands his or her relations to living descendants, spouse, parents, and those whose interests are affected by the will; and
- does not suffer from any mental disorders with symptoms including delusions or hallucinations, which result in his or her devising property in the will in a way which except for the existence of the delusions or hallucinations he or she would not have done.
Generally speaking, testator needs to understand that he or she is signing their own Will and be cognizant of how and to whom he or she is distributing his or her assets in that Will.
The capacity rule is especially important for individuals with dementia. Just because he or she has been diagnosed with Alzheimer’s or dementia does not necessarily mean that they cannot sign a Will. The critical element in determining if the Will is valid is the capacity of the person at the time the Will was signed. If the person had a period of lucidity, was thinking clearly, and understood his or her action of signing his or her Will, the document will be determined valid. It is important to note that having witnesses and a notary public witness the signing may help defeat any challenge as to capacity in the future. Additional safeguard that can be used when the capacity of the person signing the Will is in question, is recording a video that shows that the person is experiencing a lucid moment.
We Can Help
Have further questions about estate planning? Call Sobon Law LLC today (216) 586-4246.
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