Trust Law Partners Blog

We understand how complicated it can be to navigate trust disputes. Our blog is designed to give you the information needed to better understand how to protect your interests as trustees.


Proving Mental Incapacity

Not to be flip, but people are often befuddled about the mental capacity needed to prepare a valid estate plan. Let me tell you, the bar is pretty low. 

Essentially, if you’re clear-minded and have a basic understanding of your possessions at the time you make an estate plan, the plan is considered good. Shocking but true: your plan will be valid even if you’re lucid only for short periods of time—like when you’re consulting an attorney—and incompetent the other 23 hours of the day. 

Many clients come to Trust Law Partners claiming their parents were suffering from dementia, or other mental issues, when they decided to cut them out of the will and deny their rightful inheritance. Perhaps so. But these same clients are surprised when we tell them how difficult it is to prove mental incapacity. Here’s what has to happen:

First, we need to request lots of medical records to see what doctors might have said about the trustee’s mental state. Most doctors, regardless of their specialty, will note if a patient is experiencing mental competency issues. But experienced trust and will attorneys will always push beyond the obvious in their quest to prove mental incompetence.

We at Trust Law Partners have had great success by looking at doctor’s reports or even handwritten notes for mentions of forgetfulness, dementia, or other telltale signs such as sudden weight fluctuations. If the latter seems strange it’s important to note that when people are demented they often forget to eat, or forgot they ate. Coupled with other findings, these are actually strong hints that the trustee might not have been in full control of their mental faculties when they created the estate plan.

Next, because the trustee is no longer alive to do simple mental capacity tests, after poring over medical records we then interview family members, friends and other witnesses to gauge the person’s mental state.  Sometimes, we get lucky and find that a doctor has already conducted these tests, as they often do with elderly people. Unfortunately, though, this is not the usual situation. In these instances, instead of basing our case on objective medical opinion we turn to anecdotal evidence from relatives. “They seemed so out of it,” some will say, or insist, “They were always forgetting things.”

But here’s the reality: being absent-minded is not a basis for invalidating an estate plan. It’s just one piece of a puzzle. If the person missed paying bills, or showing up at an event, that is only a part of the equation—and, frankly, not a big one. On the other hand, if we can prove they frequently forgot the names of their children, that has a direct bearing on the creation of a fair- minded estate plan. Then we have something.

It’s common knowledge among attorneys that an estate plan that makes drastic changes in the latter part of the trustee’s life is suspect and could be challenged. It should also be a red flag if the trustee wishes to cut out children or other people from their estate plans. If their lawyers are wise they’ll send the trustee to a doctor for a medical opinion on their mental state and ability to make financial decisions. Occasionally, another estate planning attorney is brought in for an independent review.

As a general rule, proving someone lacks capacity requires evidence from medical records showing that they’re greatly mentally diminished 24/7—or pretty much off their rocker. Then a medical expert must review these records and testify under oath that the person was unable to appreciate what they were doing when they created their new estate plan. Take my word based on 28 years of litigating these cases: this is very hard to prove. And when mental incapacity is upheld it’s usually based firmly on medical records and family interviews. Historically, we’ve found that evidence must show the trustee was either in a coma, or acting very strangely and in serious need of mental help. Missing a birthday or forgetting to feed their goldfish won’t cut it. Furthermore, if the person was evaluated by a doctor and/or attorney and cleared to do the estate plan, contesting it on the basis of mental capacity is largely impossible.  

Given the challenges of proving mental incapacity, most estate plans are invalidated based on Undue Influence, which we discuss in another blog. Nevertheless, if you’ve been denied your due inheritance because the creator of the estate plan was mentally diminished, don’t be discouraged. Seek the advice of experienced attorneys like Trust Law Partners. We’ll give you a free evaluation—with no upfront fees, and do all the legwork necessary to prove your case.