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Lack of Capacity

A lack of capacity is when you challenge the validity of a will based on the diminished mental capacity of the person making the will.

This problem is seen more often because of the transfer of wealth taking place between the World War II and baby boomer generations.

Usually a beneficiary finds out that there is something wrong or missing from their will. Usually they feel in their gut that the will was signed by someone who is not 100% mentally.

The grantor may have had surgery, may have diminished mental capacity from Alzheimer’s or from dementia, or may be affected by medication that they’re taking.

A person lacks capacity to execute a will or a trust if they lack the ability to understand what they owe in assets and comprehend to whom those assets will go.

If someone has a lack of capacity, they do not have the ability to understand what it is that they’re signing when it comes to a will.

You can try to prove a lack of capacity using medical records and testimony of the people who were familiar with the decedent.

Absence of mental capacity at time a will was executed can be cause for disputing a will. A safeguard against having people who lack testamentary capacity from making wills is the presence of a lawyer involved in the will drafting and execution process.

If someone you know suddenly changed a will to what you believe was opposite of what you know them to want, you should follow your gut and talk to an attorney, quickly.

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