A Will is probably the most common estate planning tool. It is also a very easy way to make sure your property is passed on to those individuals you choose, after your death. Not everyone is competent to create a will, however. If you do not have the legal capacity required at the time you execute your will, it will not be considered valid. There are basic requirements, established by law, which must be met for your will to be valid. Basically, the testator (the person executing the will) must have the legal and mental capacity to create the document, and there must be no undue influence, fraud or duress in creating the will.
What is competency?
Generally speaking, the testator must be old enough to create the will and must be able to understand the nature and extent of his or her property, as well as the identity of his or her heirs. In Nevada, a testator must be at least 18 years old and of “sound mind,” according to statute.
Under Nevada law, an incapacitated person is defined as follows:
“Incapacitated person” means a person who is impaired by reason of mental illness, mental deficiency, advanced age, disease, weakness of mind or any other cause except minority, to the extent of lacking sufficient understanding or capacity to make or communicate responsible decisions.
In some cases, incapacity is only temporary, such as when a person is unconscious or in a coma. In those cases, they are considered incapacitated because they cannot respond to questions or make decisions on their own, not because of any mental issues. If that temporary condition is resolved, capacity is considered to be restored. So, not all incapacity results in a will being deemed void.
What if someone contests the will?
It is the court that makes the legal determination that someone is incapacitated. The court generally reviews the opinions of medical experts, but may request further examinations or independent analysis by a psychologist or psychiatrist if there is any contest to the will or the competence of the testator. Family members, beneficiaries of the will, as well as the person whose capacity is in question, can also contest the will and require the court’s final determination.
What if undue influence or fraud is suspected?
A suspicion that the testator was unduly influenced by someone else to create the will or to include certain terms in the will may arise. This is a concern where there is evidence of exploitation of an emotionally vulnerable testator, who might otherwise be competent. In those cases, evidence from family members who once were close, but have been excluded by the testator since another person has moved in with or extracted the affections of the testator or even a forensic specialist may be needed to determine whether the signs of undue influence are present.
In some situations, it can be shown that a beneficiary of the will made a specific false statement to the testator, which resulted in the testator changing his or her will in a way that benefits that beneficiary. One common type of fraud occurs when a testator, who has had several mental lapses and allowed a beneficiary to make decisions for him or her. The testator in that situation is more likely to be suspected of allowing fraud to influence the decision. These are all considerations in determining whether the person making the will was “competent” under the law.
These same considerations are applicable to any testamentary document such a trusts, and assets where beneficiaries can be named such as POD and TOD accounts.
If it is time you created your estate plan or had it reviewed, you should do so now to avoid the possibility of future incapacity. See a qualified northern Nevada estate planning attorney to get the process started.