Mental Capacity Will Determine Validity of Testamentary Choices

Dear Mr. Premack: My father was diagnosed with Alzheimer’s 8 years ago. He had a Will before then, yet my stepmother refuses to say anything except he left everything to her. I believe the Will may have been changed after his diagnosis. Is the Will still legal? What rights to his children have? – TD

The question is: did he have testamentary capacity at the time he executed his Will? He must know the extent of his family, understand that he was making his Will, understand the effect of the Will, and know the general nature and extent of his assets. Those diagnosed with Alzheimer’s have widely varying abilities, so the fact that the doctor has used this label does not in itself preclude the possibility that he had testamentary capacity.

The children have limited rights. They can contest the Will but may have a difficult time proving he lacked capacity. If they win, they may receive a portion of his estate as his heirs-at-law but will not get each and every penny that he owned since his wife is also a partial heir-at-law.

Paul Premack is a Certified Elder Law Attorney and a Five Star Wealth Manager (Texas Monthly Magazine 2009-2013) practicing estate planning and probate law in San Antonio.

Original Publication: San Antonio Express News, February 12, 2010

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Paul Premack, 2019-2020 President of the Texas Chapter of the National Academy of Elder Law Attorneys (NAELA) is *Certified as an Elder Law Attorney ( CELA ) by the National Elder Law Foundation as accredited by the Texas Board of Legal Specialization and the ABA. He is licensed to practice law in Texas and in Washington State, and handles San Antonio Probate and Bexar County Probate, Wills, Living Trusts, Estate Planning, and writes the legal column for the San Antonio Express News.

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