27 May My father wants to change his will but he’s sick. What’s next?

Q. My father was planning to change his will to cut out his sister, but now he is ill and is terminal and probably unable to make the changes. I’m afraid if he does, his sister will try to fight it and say he was not competent. What can we do?
— Concerned

A. We’re sorry to hear that your dad isn’t doing well, and that there are complicated relationships in your family.

Provided all formalities, such as the presence of two witnesses and an original, authentic signature, are met, the two primary ways to invalidate a will are by proving the presence of undue influence or lack of capacity, said Tom Szieber, a trusts and estates attorney at Herold Law in Warren

In general, a very low degree of mental capacity is needed to execute a will, he said.

“As long as the testator knows that his property has value and has a general idea of the composition of his estate, he probably has capacity to execute a will,” Szieber said. “Even old age, mental or physical illness or slight intoxication do not, per se, render a person incompetent to execute a will.”

In addition, the burden is on the party contesting the will to prove the alleged incapacity and he or she must prove that the testator lacked such capacity by “clear and convincing evidence”—a higher standard than the “preponderance of the evidence” standard used in many civil matters, he said.

An attorney drafting a will can take steps to evaluate capacity by asking the testator about details of his assets, heirs and family, as well as his reasoning for his desired fiduciaries and estate disposition, Szieber said.

“If the testator can reasonably answer most questions on those topics, he or she likely has capacity to execute the will,” he said. “Since capacity is assessed based on the date the will is signed, having disinterested and independent witnesses at the signing is critical — some attorneys will even videotape a signing where the testator is concerned about a later false accusation of incapacity.”

You seem to think your dad may be unable to make changes to the current will, but you didn’t say why you feel that way. So, Szieber said, any attorney would want to assess his competency without anyone other than the witnesses and notary public present. This would avoid any later allegations of undue influence as a separate means to invalidate the will.

“If, however, the attorney is unconvinced that the testator is competent to execute the will, he may want to consult with a medical professional or decline to proceed,” Szieber said. “If the testator cannot satisfy an attorney that he is competent, he will not be able to execute a new will.”

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This story was originally published on May 27, 2021.

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