Reason to Update your Will Now: (In)Capacity


There are several reasons to make a Will: formalizing how your estate will be distributed, determining who will administer your estate, deciding who will take responsibility for your dependent children (if that applies to you), and tax planning purposes.  Conventional wisdom states that you should reconsider your Will every approximately five years, and after important life events such marriage, divorce or separation, birth of a child, death of a close family member, or a significant change in financial position.  There is an additional consideration: the potential for incapacity claims after the death of a will-maker.

Many legal challenges to wills concern situations the will-maker waited until he or she was in very poor health or at an advanced age to make or change a Will.  This makes sense because a will-maker prioritizes planning for after his or her death at that stage of life.  However, one of the drawbacks is that it increases the likelihood that there will be a dispute about whether the will-maker was of “sound mind” and capable of making a Will.

In practice, it can be difficult to definitely determine whether a person has capacity to make a Will.  The precedents instruct us that: (a) determining testamentary capacity is a legal question rather than a strictly medical question, but it is informed by the science: (b) a diagnosis of dementia does not necessarily mean that a person is not capable of making a Will and (c) capacity can fluctuate over time.  In many cases in which the will-maker has waited until poor health or an advanced age, the answer is not clear.  The uncertainty can lead to litigation.

These disputes are stressful and costly to the beneficiaries and deplete the value of the Estate.  Even in cases where the Court decides that the will-maker did in fact have capacity, the cost of the lawsuit is significant.  By considering whether your Will reflects your current intentions regularly, you decrease the likelihood of such a dispute after death.

For any questions about Make A Will Week, please contact: