Attorney Q&A’s

Can someone with Alzheimer’s or another dementia make or change a will?

Alzheimer’s is a type of dementia that affects memory, thinking and behavior. Symptoms eventually grow severe enough to interfere with daily tasks, including the ability to understand and make decisions.

Millions of people are affected by dementia, and many of them do not have all their estate planning affairs in order before the symptoms start. If you or a loved one has dementia, it may not be too late to create a will, a trust, or other legal documents. Your diagnosis does not automatically prevent you from creating an estate plan, including a will, but certain criteria must be met to ensure that you are mentally competent.

In New York, for anyone to make a will, you must have “testamentary capacity.” Testamentary capacity is a legal term meaning the person signing the will must have the mental and cognitive ability to create or revoke a will.  You must be able to understand the nature and consequences of your actions when creating a will.  

The diagnosis of dementia alone does not mean you lack the required mental capacity.  If you have periods of lucidity, you may still be competent to sign a will. 

You are considered mentally competent and have “testamentary capacity” if you can meet the following criteria:

  • You understand what a will is.
  • You understand how a will disposes of your property after you pass.
  • You know what you own and what it’s worth.
  • You know who your relatives and descendants are and can articulate and decide who should inherit your property.
  • You understand how all these components relate.

Of course, after your pass, family members may believe you lacked the mental capacity to sign your will, and they can contest your will. There are many things you can do when creating your will to prevent and defend a will contest.  At Monaco Cooper Lamme & Carr, PLLC, we have New York estate lawyers who take a series of steps to ensure that your mental competency is well established and documented:

  • We have a series of questions that we ask you to assess your competency.
  • We ensure that there is no undue influence upon you by another person.
  • We keep impeccable written notes regarding our meetings.
  • We maintain copies of all our digital communications.
  • We have two independent witnesses attend your will signing.
  • We recommend inclusion of a no-contest clause in your will (i.e. if you contest the will and lose, you get nothing).
  • We can even audio or video record your will signing.
  • We even have had clients prove their mental capacity by obtaining a note from their physician confirming their mental capacity.

If you would like to write a Will, or review the one you have, give us a call at Monaco Cooper Lamme & Carr, PLLC.

Phone: (518) 855-3535


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