Cognitive Impairment and the Capacity to Make a Will in New York

The ability to make a will, also known as testamentary capacity, is a critical requirement for executing a valid will in New York. It is important to understand that testamentary capacity requires more than just having the legal capacity to contract, such as being over 18 years of age and of sound mind. In New York, the person executing the will must have the capacity to understand the nature and consequences of the act of making a will. If a testator suffered from cognitive impairment at the time they made their will, that will could be challenged in a will contest. If you have concerns that a will of a loved one should not be probated because they suffered from cognitive impairment at the time the will was executed, contact an experienced New York will contest lawyer at Stephen Bilkis & Associates to discuss your concerns.

Cognitive impairment, which can occur due to various reasons such as aging, dementia, or mental illness, can affect an individual's testamentary capacity. In New York, the law recognizes that cognitive impairment can impact a person's ability to make a will. The court will consider whether an individual had testamentary capacity at the time of making their will, and whether any cognitive impairment impacted their capacity to do so.

If an individual has cognitive impairment, it does not necessarily mean that they lack testamentary capacity. The test for testamentary capacity in New York that at the time of making their will, an individual must have the ability to understand:

1. The nature and consequences of making a will;
2. The extent of the property being disposed of; and
3. The natural objects of the individual's bounty and their relation to them.

If you have concerns about whether a loved one had the capacity to make a will, contact an experienced New York will contest lawyer.

The law in New York requires that the burden of proving testamentary capacity rests with the party who is challenging the validity of the will. To successfully challenge a will based on the lack of testamentary capacity, the challenger must provide clear and convincing evidence that the individual lacked the necessary testamentary capacity at the time of making the will.

One way to establish that an individual lacked testamentary capacity is to provide medical evidence. Medical records, expert witness testimony, and evaluations can be used to demonstrate an individual's cognitive impairment and how it may have affected their testamentary capacity.

For instance, if an individual has been diagnosed with Alzheimer's disease or dementia, this diagnosis alone is not sufficient to prove that they lacked testamentary capacity. However, if the medical records show that the individual was in the late stages of the disease, had significant memory loss, and was disoriented at the time of making their will, this evidence can support a finding that they lacked testamentary capacity. An experienced will contest attorney in New York can help you assembled the evidence needed to support whether the testator had

• In re Last Will & Testament of Mallin, 2016 N.Y. Slip Op. 32032 (N.Y. Sup. Ct. 2016)- The central issue in this case revolves around testamentary capacity and the alleged cognitive impairment of the decedent at the time of executing the Will. The court, while addressing objections to the probate of the Will, grappled with whether the decedent had the mental capacity to make a valid Will. Despite the absence of an in terrorem clause, typically required for examining a nominated executor pre-objection, the court ruled that SCPA 1404(4) does not preclude the examination of James Bastian. The decision suggests a recognition of the importance of probing testamentary capacity concerns, allowing for a comprehensive assessment of the decedent's mental state during the Will's execution.
• Alibrandi v. Wise (In re Estate of Alibrandi), 104 A.D.3d 1175 (N.Y. App. Div. 2013). The case involves a dispute over the probate of the decedent's will. The granddaughter, objecting to the will's probate, alleged that the decedent lacked testamentary capacity and that the will resulted from undue influence by the daughter, the petitioner. The Surrogate's Court granted summary judgment in favor of the petitioner, admitting the will to probate. The court found the granddaughter failed to present evidence raising a genuine issue regarding testamentary capacity, citing the decedent's sound mind during will discussions, neurological examination, and Mini–Mental State Examination. The court also dismissed the undue influence claim, noting the lack of direct evidence implicating the petitioner.

If you feel that the will of a loved one should be invalidated due to lack of testamentary capacity, contact an experienced will contest attorney serving New York who understands cognitive impairment and the capacity to make a will in New York. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: Manhattan, Long Island, Nassau County, Queens, Brooklyn, Staten Island, Suffolk County, Bronx, and Westchester County.