Since my father's psychological break down, he is having his will redone. Will it stand up in court?

1 answer | Last updated: Oct 04, 2016
A fellow caregiver asked...

My father is 81 years old. Three years ago before my mother, his wife, passed away they had their will prepared. Since that time, he had fallen broken his leg, had surgery and has had a documented psycotic breakdown after surgery. He is now on Aricipt. His rational thinking has come into question. He recently has been taken to another lawyer by my sister to have his will redone. Will this new will stand up in court.

Expert Answers

Judy and Fred co-mediate family property and financial conflicts, and each work individually as mediators as well. Judy Barber, a mediator and family business consultant, assists clients in resolving overlapping family and money conflicts so they are better able to make sound estate planning decisions. Frederick Hertz is an attorney and mediator who specializes in resolving co-ownership matters involving families, siblings, spouses, cohabitants and domestic partners.

This is a difficult situation for you and your family, and the legal issues for having a will re-done are as important as are the quality of your father's life. From what you described, it sounds like he did not fully recover from a psychotic breakdown after surgery. As we understand the situation the medication Aricept is used to treat dementia. If your father is suffering from memory loss, he may also be anxious and confused. Moreover, he also may be worried about the changes he feels inside and unhappy about the tension between his children, even if he cannot articulate those worries.

We recommend that you and your sister contact a mutually acceptable psychologist trained in assessment, and ask them to clarify the current condition of your dad's mental capacity, and advise you as to whether your father suffers from an irreversible dementia. Your father's primary care physician may have a referral for you. In some states there may be an office of Adult Protective Services, an agency in most states that can arrange testing for you, so you may want to contact them as well. The results may or may not clarify whether the courts would accept a new will, but just as important, the outcome may help you and your sister think through how to best to take care of your father.

You might also consider asking your sister to include you in any discussions or meetings with the new lawyer, so that there is transparency in the discussions. Once you have aired your concerns you could figure out the best approach, which might also involve a family meeting with your father present, so that everyone can hear what he has to say and join in the evaluation of his mental condition.

As to the validity of the will, this is something that would only be analyzed after he died, if a disinherited heir filed a will challenge. There are two related issues that would be analyzed: whether your dad had sufficient capacity to make the changes he made, and whether or not your sister (or anyone else) exercised undue influence on his decision-making. Every state has its own rules about these issues, and there is no black-and-white standard here. It might be helpful for you to spend an hour or so now with an estate attorney who can explain your state's rules on these doctrines, so you can better frame your inquiry to your sister.