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What does it take to prove someone is incapable of creating a will?

On Behalf of | Dec 27, 2021 | Probate & Estate Litigation |

Many Georgia residents have gone through the process of creating an estate plan. They realize this is an important task in ensuring their assets are transferred to whom they wish after they pass away. Most of the time this process goes smoothly after their death but occasionally a will can be challenged. One of the grounds of challenging a will in Georgia is mental capacity. But how do you prove that someone is not mentally capable of creating a will?

Many times, a will is created when a person is older. They may understand that it is important for their family to make it easier when they pass away. But as people enter their later years, they can lose mental capacity. Dementia and Alzheimer’s Disease are common among older people and can affect their mental capacity. In Georgia, a will can be challenged by an interested party if they believe the testator lacked mental capacity. When a testator creates a will, they must:

  • Understand that the will will distribute their property at the time of their death.
  • Be capable of remembering those related to them.
  • Be capable of conveying a method of allocation.
  • Be capable of remembering the property that is being distributed by the will.

If the will is challenged, evidence may be brought up to prove the person was incapacitated at the time the will was created. This evidence may include:

  • Medical records
  • Testimony of the testator’s medical doctors, psychiatrist and nurses
  • Testimony of those who observed the testator sign the will.

A legal professional who is skilled in estate litigation can help a family who is dealing with a will contest. Whether the family needs to defend the will, or a person believes the testator lacked mental capacity, an attorney has the experience necessary to work through the conflict and resolve the matter as the testator intended.