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Challenging a Will Because of a Testator’s Loss of Mental Faculties


It is hard to talk to your parents about their inevitable illness and death, even while they are healthy, even when you are just speaking in terms of hypothetical ways that their final years might play out.  It is even more difficult when their health is already fragile or they are already suffering from memory loss.  Financial abuse of elderly people is rampant, though, and seniors sometimes insist on their right to make risky financial decisions and put their trust in anyone they choose; raising your concerns about their new best friend or new financial advisor being a charlatan can only make them more determined to assert their independence from you.  What do you do, though, if you think that someone manipulated your family member into changing his or her will when your family member’s dementia prevented him or her from making an informed decision?  Challenging the will is one option.  An estate planning lawyer can help you decide how to protect your elderly relative’s assets or how to deal with a will signed by someone who suffered from memory loss.

Do You Have Legal Grounds to Challenge a Will?

One of the main causes of probate processes taking a long time is when someone challenges the will being administered.  If you challenge the will simply because you think it is unfair that the testator left you so little from the estate, the court will reject your petition.  If you think, however, that the testator’s failing mental faculties led to him leaving a will that differed substantially from the one he wrote when he was healthy, then some or all of the following legally valid arguments might apply:

  • The testator did not understand the will when he signed it, so his signature is not valid
  • Someone unduly influenced the testator in persuading him to change his will, taking advantage of his fragile mental state
  • The will or its signature was obtained through fraud

How to Prevent This Problem

A messy probate case in which would-be heirs challenge the will of a person who suffered from dementia at the end of his or her life is the worst-case scenario, but with enough planning, and with the guidance of an estate planning lawyer, it is often possible to avoid it.  These are some other options to discuss with your lawyer if your elderly parent still has important estate planning decisions to make:

  • Assigning guardianship or power of attorney to a younger relative or to a lawyer
  • Transferring some or all of your parent’s assets to a trust
  • Writing and signing a will now, while your parent is still healthy enough

If an elderly relative of yours has dementia and is already making bad financial decisions, an estate planning lawyer is only one of the lawyers you should contact; you might also need the services of an elder law attorney.

Let Us Help You Today

Working with an estate planning lawyer now can help you avoid prolonged legal battles over the authenticity of a family member’s will.  Contact a Washington DC estate planning lawyer at Tobin O’Connor Concino P.C. for help.


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