The older population in the United States has been on the rise for decades now – and is expected to continue to increase in the coming years. Not surprisingly, there has been a corresponding increase in the number of older Americans facing Alzheimer’s disease. Consequently, I have noticed an increasing concern among my clients regarding the legitimacy of Wills executed by family members affected by Alzheimer’s (or other types of dementia). Because concerns about the validity of a Will can escalate into a costly and emotionally charged Will contest, I thought I would take this opportunity to provide some insight into the impact of Alzheimer’s on testamentary capacity in Maryland.
How Can I Challenge a Will in Maryland?
Upon receiving notification of a family member or loved one’s passing, whoever possesses the original (signed) Last Will and Testament of the deceased hands it over to the estate Administrator, typically the person designated as the Personal Representative, (referred to as the Executor in some states), in the Will. The Personal Representative then presents the Will to the relevant court for authentication. If you have doubts about the Will’s validity, you must file a “caveat” with the court, using the legal term for contesting a Will in Maryland. To contest a Will, you must assert grounds on which the Will could legally be declared invalid. In Maryland, those grounds include:
- Incompetence of the Testator (lack of testamentary capacity).
- Undue influence.
- Forgery or fraud.
- Duress.
- Failure in execution.
- Revocation.
If your challenge is based on the assertion that the Testator (the person executing the Will) lacked the necessary testamentary capacity when the Will was created, you must substantiate this claim to be successful. A successful challenge results in the court deeming the submitted Will invalid and searching for a previously executed, valid Will. In the absence of a valid Will, Maryland’s intestate succession laws govern the distribution of assets. Conversely, an unsuccessful challenge leads to the court confirming the authenticity of the Will, and its terms dictate the distribution of the estate assets.
What Does “Testamentary Capacity” Mean in Maryland?
To successfully contest a Will based on the lack of testamentary capacity in Maryland, the contestant must rebut the presumption that the Testator did have the requisite capacity at the time the Will was executed. Testamentary capacity is unique within the law and cannot be compared to other types of legal capacity, such as the capacity to make medical decisions or to enter into a contract. In Maryland, testamentary capacity requires the Testator to:
- Understand the nature and extent of his or her property ownership.
- Understand the disposition of that property being made in the Will.
- Understand the consequences of the disposition of their assets (for example, if an heir is left out of the Will).
All three of these must exist for a Testator to have testamentary capacity. In a Will contest, the burden is on the person bringing a caveat proceeding to prove that the Testator lacked capacity.
Does Someone with Alzheimer’s Disease Lack Testamentary Incapacity in Maryland?
To establish a lack of testamentary capacity in a Maryland Will contest, the contestant must demonstrate the absence of any of the required elements at the time the Will was executed. Although we often associate age with a decline in cognitive abilities, merely establishing the Testator’s age or even a diagnosis of Alzheimer’s disease is insufficient to prove that the Testator lacked testamentary incapacity. If the Testator had Alzheimer’s (or another form of dementia), a contestant will likely be required to provide evidence of the severity of the condition and the presence of symptoms at the time of Will execution. Individuals in the early to middle stages of Alzheimer’s, for example, may experience fluctuations in cognitive abilities. While a person with dementia might not recall a family member a week before creating a Will, they could be entirely lucid and remember everything on the day the Will is signed. Because the relevant issue is whether the Testator lacked testamentary capacity at the time the Will was executed, something more than a diagnosis of Alzheimer’s will typically be needed to successfully pursue a Maryland Will contest.
Do You Need Assistance with a Maryland Will Contest?
For more information, please contact our estate planning office in Owings Mills, Maryland by calling 410-654-3850 to schedule an appointment.
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