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Testamentary Capacity Concerns for Loved Ones with Dementia

Posted on in Estate Planning

DuPage County estate planning attorneyIn Illinois, wills, trusts, and other estate planning documents must meet certain criteria in order to be valid. In order for the court to uphold a will, the person who created the will, called the testator, must fully understand the provisions contained in the will and the consequences of these provisions. If a testator was forced, under undue influence, or could not comprehend what he or she was doing when he or she signed the will, the will may not be legally binding. If the validity of the will iscontested and the court finds that the testator did not consent to the directions contained in the will, it could be thrown out completely. If you have a loved one with dementia who wishes to draft a will, you will need to take special precautions to ensure that the will is legally enforceable.

Testamentary Capacity Explained

The term “testamentary capacity” refers to a testator’s mental clarity and understanding. Testamentary capacity is also sometimes called “sound mind and memory” or “disposing mind and memory.” Testators as presumed to have testamentary capacity unless there is convincing evidence to the contrary. If your loved one wishes to create a will or other estate planning document and he or she suffers from dementia, Alzheimer’s Disease, or another illness that affects cognition, this could be grounds for his or her testamentary capacity to come into question.

Ensuring That Your Loved One Has Testamentary Capacity

Your loved one deserves to have his or her final wishes followed. In order to ensure that the will is not considered invalid due to testamentary capacity concerns, you should ensure that your loved one meets Illinois criteria for proving testamentary capacity. The Illinois Probate Act of 1975, states that an adult has the authority to draft a will if he or she “is of sound mind and memory.” Illinois appeals court case Beyers v. Billingsley addressed exactly what constitutes sound mind and memory in 1977. There are three conditions that must be met in order for a testator to have sufficient testamentary capacity. A person is of sound mind and memory for the purposes of estate planning if he or she can:

  • Recognize and remember the names of family members such as children and grandchildren;
  • Understand the nature and approximate value of his or her property; and
  • Create a plan in his or her mind for how his or her property will be distributed to heirs.

If you want to have proof that your loved one meets these criteria, you may want to have them create a written acknowledgement of their intentions regarding the will. A medical professional can also help provide evidence that your loved one was of sound mind if the validity of the will comes into question.

Contact a Lombard Will Attorney

For help with drafting a will, contesting an invalid will, and more, contact an experienced DuPage County estate planning lawyer at A. Traub & Associates. Call 630-426-0196 to schedule a confidential consultation today.

 

Sources:

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2104&SeqStart=5300000&SeqEnd=6800000

https://www.alzheimers.net/4-20-16-person-with-dementia-draft-will/

https://courts.illinois.gov/CircuitCourt/CivilJuryInstructions/200.00.pdf

Illinois State Bar Association DuPage County Bar Association Northwest Suburban Bar Association American Inns of Court DuPage Association of Woman Lawyers National Association of Woman Business Owners Illinois Association Criminal Defense Lawyers DuPage County Criminal Defense Lawyers Association
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