Tag Archive for: dementia

Capacity Issues in Relation to Estate Planning

A common misconception that often arises in my practice is that someone who is cognitively “stable” automatically has testamentary capacity and is capable of drafting (or directing someone to draft) their estate planning documents. According to the CDC, 1 in 4 Americans in 2023 have some form of a disability and according to the Alzheimer’s Association, an estimated 5.8 million Americans suffers from Alzheimer’s dementia today. That number is expected to triple by the year 2050. Because illnesses of this nature are progressive, persons in the mild to moderate stages often retain the capacity necessary to execute estate planning documents, while other may only have lucid intervals. 

In terms of determining testamentary capacity (the capacity to execute a last will and testament), the testator must generally know (1) what property he/she has, (2) what he/she wants to do with their property upon their passing, (3) know the individuals whom he/she want to receive said property and (4) fully understand the results of those choices. While an individual may be able to rattle off the street they live on or their birthday, these things are not relevant in terms of testamentary capacity. 

When drafting estate planning documents, attorneys must always exercise caution when there is a reason to question mental capacity because failing to do so can lead to disastrous consequences, such as will contests. Every attorney is different in their approach to this sensitive issue, but I have always found it best to meet with the client in person and without unnecessary family/friends in the room so I can ask the necessary questions I need in order to assess capacity. If I’m left feeling unsure, my next step is to require the client to provide a detailed written opinion from a doctor as to the testator’s capacity, preferably written within a week or two of drafting the estate documents. 

Of course the takeaway from all of this is that it is so very important to take care of your estate planning needs early on, before you or someone you love begins to experience a decline in mental health. You are never too young to have an estate plan in place!


To learn more about estate planning and how we can assist you, contact Davis, Davis & Associates today to schedule a consultation. (251) 621-1555.