The aging process can bring numerous health problems, including conditions that can affect cognitive ability. When the ability to process information and make appropriate decisions declines, this can impact the validity of various estate-planning steps.
Part of ensuring an effective estate plan rather than a vortex of conflict and litigation is paying close attention to the testator’s mental state. Ideally, an estate plan should be thought out and put in place well in advance of when it is likely to be needed.
Basic legal requirements
To make a valid will in New Jersey, a person must have testamentary capacity. New Jersey law defines capacity as being 18 years or older, while possessing a basic understanding of what property one owns, of who the natural objects of one’s bounty are and of the meaning of disposing of one’s property in a particular way.
Not all levels of impairment equal incapacity
A person can suffer some degree of cognitive decline and still possess sufficient capacity to make a valid will. Especially in the early stages of cognitive conditions, a person may show visible impairment in some areas of functioning and virtually none in others. The law does not require functioning at peak mental capacity, but merely a basic understanding of three fairly uncomplicated concepts.
When a diagnosis is in place
Difficult situations may arise when a person makes a will after a diagnosis of a condition such as Alzheimer’s. Parties wishing to contest the will often argue from the position that the diagnosis strongly supports a finding of incapacity.
Anticipating future challenges
When someone with a diagnosis or visible signs of cognitive decline wants to make a will, there are some steps that can decrease the likelihood of an eventual will contest. It is generally a good idea to have the testator evaluated by qualified medical professionals and to get detailed written reports describing the extent of the testator’s mental capacity. Making a video recording of the will’s execution can also show the testator’s mental condition at the time of signing the will.
