Family members or friends often discourage those with dementia from seeking legal advice because they feel that the person is not capable of doing planning or executing documents. In many instances that is not the case and the individual does have enough mental capacity to sign a will.
In New Hampshire for a will to be valid, the person signing must have “testamentary capacity”. Dementia or other mental illness or disease does not mean that a person automatically lacks the required mental capacity. As long as the person signing the document has periods of lucidity, he or she may still be competent to sign a will.
Generally, you are considered mentally competent to sign a will if the following criteria are met:
- You understand the nature and extent of your property, which means you know what you own and how much of it.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
- You understand what a will is and how it disposes of property.
- You understand how all these things relate to each other and come together to form a plan.
Family members may contest the will if they are unhappy with the distributions and believe you lacked mental capacity to sign it. In addition, a will can be contested if “undue influence” was exerted on the signer of the will. If a will is found to be invalid, a prior will may be reinstated or the estate may pass through the state’s intestacy laws (as if no will existed). To prevent a will contest, your attorney should help make it as clear as possible that the person signing the will is competent. If it turns out that a person does not have the required mental capacity a guardianship hearing is the likely outcome.