Well before your parent passed away, you knew something was wrong. Perhaps he or she began acting strangely, behaving unpredictably or making unusual financial decisions. You may have sensed there was some diminished cognitive ability or even substance abuse. Unfortunately, during this confusing time, your loved one executed his or her estate plan.
Now that your parent is gone, you discover that the estate plan did not leave you with the inheritance you expected. Perhaps the plan left you out altogether, and the wealth you anticipated went to someone else. This is beyond disappointment, especially if your parent’s estate included the family business, heirlooms or other valuables you feel are rightfully yours. However, what recourse do you have?
Standards for determining capacity
The law in California and across the country requires a person to have testamentary capacity when making a will. This is a very low expectation, and your parent may have been able to demonstrate that capacity long enough to create and sign the will. The three elements of testamentary capacity include the following:
- Your loved one must have a general understanding of the assets he or she includes in the will.
- Your parent must be able to recognize those people who would typically inherit those assets.
- Your parent must understand at that moment that he or she is constructing a will.
Once your parent executes the will, testamentary capacity can pass, and the will remains valid. Therefore, a person with Alzheimer’s disease may be able to make a valid will if the process is completed during a time in which he or she is lucid and comprehending. If your parent subsequently had no recollection of signing a will, that factor does not invalidate the will.
Proving it in court
The levels of capacity for trusts, guardianships and consenting to medical treatment are much higher, but if you wish to challenge your loved one’s estate plan, you should be prepared for a difficult fight. You will need to present solid evidence that your loved one’s cognitive abilities were insufficient at the time the estate plan was established, and that, had your parent been thinking clearly, you would have received your rightful inheritance.
The determination in the end is based on the standards established in the law, but with the guidance of an attorney, you may be able to gather medical experts to testify on your behalf. You may also find witnesses to the execution of the estate plan who will support your claim that your loved one’s diminished capacity resulted in your wrongful disinheritance.