Lesser Lutrey Pasquesi & Howe LLP, Attorneys at Law

A Commitment

to Each Client.

When does a testator lack the capacity to draft a valid will?

Individuals can put together testamentary documents before they die that will determine what happens to their assets after their death. A will can designate specific beneficiaries for someone’s resources and name a representative to handle estate administration. Families will generally do their best to comply with the instructions provided in estate planning paperwork.

Yet, occasionally, those close to the decedent may review the documents and have concerns about their contents. Families or beneficiaries may contest a will due to a belief that the decedent lacked testamentary capacity when they drafted those documents.

When would it be possible for families to contest a will based on allegations that the testator lacked the legal capacity necessary to create testamentary documents?

Medical and mental health issues can affect capacity

Illinois has laws addressing probate matters and the capacity of an adult to draft legally-binding documents. Most adults have the necessary capacity to draft legally-binding documents. However, certain medical challenges or mental health issues could compromise someone’s testamentary capacity. For example, Alzheimer’s disease and other conditions that cause dementia could leave someone incapable of really understanding the impact of drafting or altering estate planning paperwork. Mental health issues including schizophrenia could also affect someone’s capacity to draft valid estate documents.

Those hoping to contest a will on grounds of incapacity will usually need medical records affirming someone’s diagnosis. They may also need secondary evidence about their conduct to prove that they were incapable of understanding the documents they drafted and the impact they would have on others. Someone generally needs to know what the documents will do, who their family members are and what property they own to have testamentary capacity.

Statements from witnesses, records from assisted living facilities and even personal financial records can show that someone was no longer capable of fully managing their own affairs or understanding the impact of the documents they created. The complexity of the paperwork can also influence the court’s decision on the matter. A successful challenge based on a lack of capacity might lead to the courts reinstating an older version of someone’s will. The courts could also treat their estate as though they died without a will.

Learning more about the scenarios that lead to probate litigation may help people advocate for themselves and the true desires of the deceased in extreme cases.

FindLaw Network
LCA Litigation Counsel of America Fellow
ACTEC The American College of Trust and Estate Counsel
My Estate and Legacy Planner