Q&A with Loraine: My brother lives with my elderly mother who has dementia. He recently convinced her to write a new Will. Can I contest it?

Question: My brother lives with my elderly mother who has dementia. He recently convinced her to write a new Will. How can I contest it? I don’t think she was aware of what she signed.

Loraine’s Answer: A dementia diagnosis (or a diagnosis of a condition that can cause dementia, such as Parkinson’s or Alzheimer’s) does not automatically mean that the person with the diagnosis can no longer capably act for themselves or make decisions. It simply means that the person is having problems with memory and cognition. A person who has been diagnosed as having dementia or a condition that may cause dementia is can still be legally capable of making decisions for quite some time after the initial diagnosis has been received. This is particularly true for making a new Will, since the standard of competency that a person must meet in order to be legally capable of making a Will is relatively low. If your mother was legally competent to make her new Will at the time she signed the Will, if the Will truly reflects her wishes, and if your brother’s influence and assistance simply helped her decide and carry out the decision to make the new Will, then you may not have grounds to contest the Will just because your mother was diagnosed with dementia before she signed it.  

If you truly believe that your mother’s dementia had likely progressed to the point where she really was not competent to make the Will at the time she signed it, if you believe that your brother effectively forced your mother to make a Will that does not really reflect her wishes and her intent but instead reflects what your brother wanted, or if you believe that the Will likely was not executed properly, then you may have grounds to contest the Will. In Georgia, you cannot contest a Will unless and until it has been offered for probate. This will not occur until after your mother dies, if it even occurs then (probate is not always necessary). If you think that you will want to contest the Will after your mother dies, you may want to try to start collecting evidence of the grounds for the Will contest now, so that you will have the evidence available when the time comes. Please note: I strongly advise you to get the help of an experienced probate litigator if you do eventually decide to contest the Will. Will contests are not easy matters and are not a good situation to try self-help. 

More importantly, if your mother is still alive and if you have good reason to believe that your brother is abusing or manipulating your mother, financially or emotionally, that he is neglecting her, that he is making poor decisions regarding her finances, her health care, or both, or if you think his actions or failures to act are otherwise causing your mother to risk or suffer physical, emotional, or financial damage, then you should consider trying to take action now to protect her. That kind of action may include petitioning a court for guardianship or conservatorship over your mother. (In Georgia, guardians deal with the physical health of the person who is under the guardianship, and conservators deal with the finances of the person who is under the conservatorship.) Your concern that your brother may have had your mother sign a Will without knowing what she was doing may be a sign that you should be concerned about other things that may be going on. Try to make sure that you keep in touch with your mother and your brother as much as possible, and offer to help if possible. That may be the best way to determine her condition and address your concerns about her competency and her well-being. 

Key Estate Planning Takeaway: A diagnosis of dementia doesn’t automatically mean that a person  is legally incompetent, and a person with a dementia diagnosis will often remain legally competent to make personal decisions, including financial and estate-planning-related decisions, for a long time after the diagnosis is first received. However, when a person has a dementia diagnosis and is receiving care from another person, others who care about the person with dementia may want to be careful to ensure that the person is not being abused or manipulated by the caregiver or others, and to consider seeking a guardianship or conservatorship if it looks like such a step may be required to protect the person’s wellbeing. While it may be possible to contest a Will that results from undue influence or that was signed by a person who no longer had the legal capacity to do so, waiting until after the person’s death and bringing a Will contest may not be the best way to serve either the interests of the person with dementia or the interests of that person’s heirs. 

This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to common questions. A key takeaway from each exchange highlights an important facet of estate planning.

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