A will, along with other important estate planning documents, document a person`s decisions about the disposition of their assets after their death. Once you`re 18, you can write and edit your estate plan at any point in your life, as long as you have “common sense” when the documents are signed. As people age, their mental performance often decreases. It`s hard to see a family member struggling with basic tasks, but it can be just as hard to know what to do about it. This guide explains your legal options and offers suggestions on how to ask for help. Legal capacity – also known as “common sense” – has specific legal definitions in estate and estate planning disputes. The law recognizes that the degree of understanding required to sign a document varies with the complexity of that document. Voluntary capacity: The mental capacity a person must have to make a valid will. Sometimes called “age-old and sane.” In short, the requirements boil down to this: You need to know roughly what you have, who would receive it, and how the probate documents you sign affect the direction things are taking.

According to Texas Estates Code Section 251.001, “A person of sound mind has the right and power to make a will if he/she: (1) is 18 years of age or older at the time the will is made; (2) is or has been married; or (3) is a member of the United States Armed Forces, an auxiliary combatant of the United States Armed Forces or the United States Maritime Service. (2) The deceased must understand who are the “natural objects of his premium”. Unlike some countries, adult children in the United States are not legally allowed to inherit from their parents, and subject to a number of restrictions, spouses are also not legally allowed to inherit from each other. However, this criterion presupposes that at the time of estate planning decisions, the testator at least understood who would receive their estate, usually the spouse or children of the deceased. While most wills are upheld in court, there are four main legal reasons why a will can be annulled. Who determines if a person is of sound mind or if someone is incapable at the time of signing the documents? “As long as the will seems just, it is not unnatural and was made under conditions that are not incompatible with the conclusion that came from the free spirit of that person. A healthy mind and memory refer to a person`s state of being at the time of establishing his will. A healthy mind and memory means that the person has sufficient mental capacity to understand their actions.

In order to determine whether the person had a sound mind and memory at the time the will was written, the court will consider whether the person understood what property they owned, whether they understood the relationship between themselves and the people who received their property, and whether the person understood the meaning and effect of the will. First, it should be noted that the ability to make estate planning decisions, also known as “testamentary capacity,” is a different analysis than other types of capacity issues. A person may no longer be able to live on their own due to mental decline, but still have the ability to do or modify their estate planning. Even the fact that he is under the legal guardianship of another person does not in itself prove that the person was not capable of testifying. The three-factor test is analyzed at the time of document execution, and it is possible that someone will be unable one day and have them the next. It is common for people who suffer from certain types of cognitive decline to have good and bad days. While this type of situation raises some evidentiary barriers when a challenge is filed, there is nothing inherently invalid about documents being executed during a period when the signatory temporarily has common sense. This is sometimes referred to as a “clear period” and, in these situations, it is generally wise to take care to record proof of capacity at the time of execution of the document. This is especially true if a family member is upset about the treatment they receive under the plan, as this increases the likelihood of a court challenge. If you are signing as a power of attorney for someone, you should note that you are legally signing on their behalf.

A financial power of attorney makes it easier for family members to take over a parent`s financial and legal affairs if necessary. Unfortunately, he doesn`t take care of everything, so it`s also important to get support elsewhere. Marie Forward passed away on November 24, 2008 at the age of 96. After his death, his son Robert admitted that a will drawn up in November 2002 had been drawn up for review. Mary`s 2002 will left Robert with his entire estate. Soon after, Mary`s daughter, Beatrice, attempted to admit a will signed by Mary in October 2008. Mary`s will in 2008 left Beatrice all her fortune. Robert objected to Beatrice`s will, arguing that Mary was not sane at the time of signing the 2008 will and had no testamentary capacity. A party challenging the will must provide the court with evidence that the person did not have mental health at the time the will was signed. The court may call witnesses who have seen the person who signed the will to determine mental capacity. If the court finds that the person did not have a sound mind, the will fails. “Age, weakness, forgetfulness, bad personal habits, personal eccentricities, non-recognition of friends or relatives, physical disability, distraction and mental confusion of age, weakness, forgetfulness, bad personal habits, personal eccentricities, non-recognition of former friends or relatives, physical inability, distraction and mental confusion do not justify the hypothesis that a testator is not able to do a will.

was. Estate of Selb (1948) 84 Cal. App. 2d 46, 49-52. A permanent financial power of attorney appoints someone to handle financial and legal transactions for you if you are unable to handle them yourself. Continuing powers of attorney can be structured to take effect immediately or only if you become unable to work. Unfortunately, a clear and simple test is impossible because mental performance exists in a multidimensional spectrum, whereas legal analysis requires a “yes” or “no” answer. Following the common law tradition, the Wisconsin cases introduced a three-part test to determine on a case-by-case basis whether someone was of sound mind at the time of signing a document: Since a power of attorney is one of the most important legal documents you can have, it`s important to know whether you want a standing or regular power of attorney. Like most states, Wisconsin`s mental capacity laws, which are necessary to create and amend estate planning documents, are grounded in English common law. The exact wording is found in Section 853.01 of the Wisconsin Act, which states that “any person of sound mind 18 years of age or older may make and revoke a will.” While the age requirement is simple, the exact requirements for a “common mind” are less obvious.

Since the bar of probative value is a bit low, the application of the three-part test sometimes leads to results where a court concludes that the testator had a sound mind, but the layman probably wouldn`t think so. A good example of this is the rule for people who suffer from “senseless delusions.” If a testator believes all sorts of conspiracy theories and has absurd opinions on issues, but understands their estate, the natural purposes of their bonus, and the overall impact of the plan they sign, they probably have the right ability and common sense for estate planning purposes. There is some room for challenge when the foolish illusion has “materially influenced” the provision because it can be argued that the crazy illusion has affected their ability to meet the limits of the test, but even then, these challenges are difficult because courts are generally reluctant to comment on whether a belief is “crazy” or not. The line between eccentricity and madness is difficult to draw. A now-infamous 1947 case is an oft-quoted cautionary tale of a court expanding its analysis beyond strict legal issues when several male judges assessed whether a woman was “crazy” for not liking men and donating her fortune to a women`s charity. Needless to say, the case has not aged well. In one case, the court found that the testator was capable, although “eccentric”, forgetful and childish; He slept on a cot without a mattress and wore clothes so dirty and worn they fell apart; And he had a “mind that seemed to drift into other subjects.” Estate of Agnew (1944) 65 Cal.