and Your Family
New York Cognitive Impairment
If a person suffers from a cognitive impairment such as dementia, there may be questions as to whether or not that person has the capacity to create a valid will. In New York, in order to create a will the testator must have been of “sound mind and memory” at the time he (or she) created the will. This is also referred to as having “testamentary capacity.” Testamentary capacity means that at the time he executed his will, the testator understood the property that was part of his estate, the practical effects of executing a will, and the people who are his next of kin. If a testator did not have testamentary capacity at the time he created his will, then the will would be invalid and the New York Surrogate’s Court will deny probate. If you have questions as to whether or not a loved one had the required testamentary capacity to create a will, contact an experienced New York cognitive impairment lawyer at the Law Offices of Stephen Bilkis & Associates to discuss your concerns.Cognitive impairment
Cognitive impairment is defined as having problems learning, remembering, and concentrating. Conditions that are commonly associated with cognitive impairment include Alzheimer’s, vascular dementia, Parkinson’s disease, frontotemporal dementia, traumatic brain damage, and intellectual disabilities. However, cognitive impairment can range from mild to severe. Thus, the test for whether or not someone has testamentary capacity is not based on whether or not the testator has a diagnosed condition. The mere presence of mental illnesses, even severe schizophrenia or dementia, does not automatically render a person incapable of creating a valid will. The test is:
- Whether the testator understands the nature and effect of making a will. This means that at the time the executes his will, the testator must under the practical effects of making a will. In other words he must understand that after his death, the people named as beneficiaries in his will will gain ownership of property from his estate.
- Whether the testator understands the extent of his or her estate. While it is not necessary for the testator know the exact value of his estate and all of the property that is in it, he should have a rough idea.
- Whether the testator understands who his relatives and beneficiaries are. It is important that the testator understands who his natural heirs are—even if he choose to leave his property or a portion of his property to others. He must understand who is spouse and children are. If he does not know who they are due to a cognitive impairment, then he would not have the capacity to make a will.
A will contest is typically initiated during probate, right after the executor files the will with the Surrogate’s Court and petitions the court to admit it to probate and issue him (or her) letters testamentary. When the petition for probate is filed, those listed as beneficiaries as well as family members are given notice. Thus, anyone who might feel that the will is invalid is notified and has the opportunity to file an objection to probate. While it happens, it is less common for the Surrogate’s Court to hear challenges to wills after they have been admitted to probate. In this type of challenge, the Surrogate’s Court will revoke probate if evidence of invalidity is presented.
In order to contest a will, you must have legal standing to do so. This means that you must have a financial interest in the outcome of the proceeding. Typically only beneficiaries, beneficiaries of prior wills, and intestate heirs have legal standing to contest a will.
As an experienced New York cognitive impairment lawyer will explain, if you plan to challenge a will based on lack of testamentary capacity due to cognitive impairment, you must have evidence of the testator‘s mental state at the time the will was executed. The testator’s mental state at the time of his death or days or months after he executed the will is not relevant to his mental capacity at the time he executed the will.
If you are the proponent of a will that is being challenged on the basis of lack of testamentary capacity based on cognitive impairment, there are strategies that you can use to show that the testator was not mentally incapacitated. Testimony that the testator did not show signs of mental impairment from people who spent time around the testator on the day he signed the will or in the days immediately following or immediately after would be strong evidence for the validity of the will. Records from the testator‘s treating physician, psychiatrist, or other medical professionals could provide evidence as to the testator‘s mental capacity. It is important that the records show that the person giving testimony treated the testator around the time the will was executed.
If you are concerned about whether or not a testator had the mental capacity to make a will, discuss your concerns with a New York cognitive impairment lawyer.Consequences of a finding of a lack of testamentary capacity
If the Surrogate’s Court judge agrees with you that the testator lacked testamentary capacity to make a will, then the court will invalidate the will. The primary consequence of a will being invalidated is that the court will look at a prior will and distribute the testator’s estate based on the terms of that will. If there is no valid prior will, then his estate will be distributed to the testator’s legal heirs as defined by New York’s intestate succession laws. This means that if you are survived by your spouse but have no children, your spouse will receive your entire estate. If you are survived by both your spouse and your children, then your spouse will receive the first $50,000 of your estate and the balance will be divided between your spouse and your children, with your spouse receiving 50% and the children sharing the other 50%. If you have children but no surviving spouse, your children will share in 100% of your estate. If you do not leave children (or other descendants) or a surviving spouse, then New York law list the order of the priority for which relatives would be entitled inherit.Avoiding a challenge
If a testator is suffering from cognitive impairment, it may still be possible for him to execute a valid will. Individuals with dementia and other types of cognitive impairment often have periods of clarity or when they are asymptomatic during which they would have the mental capacity to execute a will. Similarly, because such conditions have a wide range of severity, a person with a mild condition may not suffer from cognitive impairment to the extent that it would prevent him (or her) from executing a will.
With the help of a cognitive impairment attorney in New York, safeguards could be used in anticipation of a possible will challenge. For example, having the testator’s doctor present at the will signing and having the doctor write a letter confirming that the testator had the capacity to make a will may help avoid a will contest based on cognitive impairment. Similarly, videotaping the execution of the will may provide probative evidence of the testator’s mental capacity.Contact the Law Offices of Stephen Bilkis & Associates
If you believe that the will of a loved one is invalid because your loved one suffered from cognitive impairment at the time the will was executed, contact a cognitive impairment attorney serving New York at the Law Offices of Stephen Bilkis & Associates. We have years of experience representing executors, beneficiaries, and heirs in complex estate matter including will challenges. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Bronx, Westchester County, Long Island, Nassau County, Queens, Staten Island, Brooklyn, and Suffolk County.