Can the will of my mother with dementia be contested after her death?

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

My Mother had a will before she was diagnosed with Alzheimer's about 3 years ago. She is wanting to add a list designating which child is to recieve which piece of furniture. Her mind is still sound enough to make this decision. Can this list be contested after her death if it is leagally added to her will?

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Your mother can make changes to her will as long as she has the legal capacity to do it. In the eyes of the law, this means she must understand the nature, scope and effect of the document"”and be able to remember and understand who the beneficiaries are and what property they will get. Many people with Alzheimer's are able to meet this standard.

There are a few ways to proceed that you might suggest to your mother.

She may make a new will that includes spelling out the specifics for the furniture beneficiaries.

If the furniture directions don't really change the bequests given but only make them more specific, she can attach the directions to the will itself. For example, if the will stated: "the house and its contents should be divided among my three children: X, Y and Z," she could note on the will: "See attached directions," add her initials and the date to the notation, and spell out furniture specifics in the writing. It is a good idea to make these changes"”the notation and the new written directions"”with the same legal formalities the original will. In most states, that means they should be in writing, dated and witnessed by at least two people who don't stand to take any property under the terms of the will.

If you anticipate the new directions for the furniture are likely to be questioned or perhaps even legally challenged by anyone, you may encourage your mother to take a few extra steps.

Because the legal capacity requirement is measured at the time the document is made or changed, you might get a couple witnesses who are willing to sign a dated writing noting that your mother was of sound mind when she amended her will. The more detail they can provide, such as she discussed something in the news or had a cogent conversation over lunch, the better.

If she's able and willing, she might tell her preferences to the beneficiaries now"”and ask that they respect her wishes.

Finally, she could write a letter simply explaining her wishes for the furniture, requesting respect for them, and attach it to the will. While that letter would not have the force and effect of a legal document, it often goes a long toward calming family squabbles over property divisions, even before they begin.