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Common questions about wills and incapacity

If you have a close family member who has recently passed away, it is likely that they left a will so that their assets could be appropriately distributed. If you were surprised by the instructions of the will, or if the will was updated toward the end of the person's life, you may wonder whether the person was mentally stable when they updated their will.

The question of mental capacity and will-making can be challenged after a person passes away. If you believe that a loved one was mentally incapacitated when they updated their will, it is important that you understand where the law stands on this matter.

What counts as mental incapacity?

Mental or testamentary capacity can be measured in many ways. For example, a person may be unable to make complex decisions, but they still may be able to make their wishes known coherently.

If a person understands the nature of making a will and its consequences, as well as understanding the property that is being distributed, it is likely that had the testamentary capacity to draft or revise a will. In addition, it should be clear that they are not suffering from delusions or mental illness that might affect their decisions.

How can I show that my loved one did not have testamentary capacity?

Often, mental incapacity is exploited by another person who wants to use undue influence. You may be able to prove that your loved one was not of sound mind by gathering statements from medical professionals who treated your loved one. It is important to take swift action if you want to challenge a will.

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