This column first appeared in the San Antonio Express News and other Hearst Newspapers on November 19, 2019.
Dear Mr. Premack: As the info on Dementia grows medical community is showing 1 out of 3 will get Dementia in some form. In Texas are there any the laws on a child getting parents to make fake Wills to disinherit other family members of the affected parents? We just had a friend go thru dementia. Parents and the daughter made fake WILLS to cut out other family members since the parents were affected by illness of dementia... what a nightmare! Love your info in the newspapers and online! - DAG
According to the Alzheimer’s Association, the risk of dementia in the general population is 1 in 6 for people over age 80. Dementia is a risk factor but is not the only situation under which an elder may be exploited or under which a family member may commit an illegal fraudulent act.
You ask if there are any laws on a child getting parents to make fake Wills. But I am curious about the way you ask the question. Did the parents sign the Wills, but you feel that the parents’ dementia rendered them unable to do so legally? Or did the child make a forged Will and forge the parents’ signatures?
Texas law states that to make a Will, a person must have “testamentary capacity”. That means that the person knows the extent of their family, knows their assets, and knows how they want assets to be distributed – and can hold that information together long enough to make a reasonable judgement for a Will. Capacity can come and go. The Testator must have proper legal capacity at the time the Will is signed. The fact that they may have lacked capacity a week earlier or a week later may have bearing, but it is not decisive. But if it can be proven that the Testator lacked testamentary capacity at the time of the signing, the Will can be contested in court and can be denied probate.
Further, a Will can be contested in court under current Texas law if an interested person can prove it is a fake, fraud, forgery, or if the Testator was subject to undue influence. The person offering the Will for probate has the burden to prove its authenticity to the court. Whenever a Will is offered for probate, a notice is posted informing anyone who may have an interest in the estate that a particular Will is going to be considered by the court. If the challenger files a proper objection before the court rules on the validity of the Will, the person offering the Will must overcome the contest. If the contest is filed after the Will has been admitted to probate, then the challenger has the burden of proving that the Will is invalid due to some legal flaw.
Any contest of a Will is going to raise questions like: Did the child talk to the parents and convince them to change their minds about their prior Wills? Were the “other family members” ignorant of the situation? Were they already estranged? Is the child who will now benefit from the Will the main caregiver, or the only child to see the parents for years? Was the parents’ attorney involved? Is there a long-term record of the parents often changing their minds to manipulate their children’s affections? Are the signatures valid or forged? Who are the witnesses, and what do they have to say about the facts? Who is the notary (if the Will is self-proven) and what does the notary have to say about the facts?
The important lesson for all of us is to be proactive. Don’t wait until you are ill, impaired, or of questionable capacity before you make your estate plan. Do so while you are strong, in full control, and can be sure that your instructions are clear. Visit with your estate planning attorney as soon as you can.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.