(480) 807-9300






What exactly is capacity and how does it impact an estate plan?

There is a case going on in the courts in New Hampshire where a 94-year-old women had an estate worth 1.8 million  dollars. She left most of that estate to a police officer from the little town that she lived in.

There are some people who are pretty upset about that — namely the two hospitals that in her prior will, were going to get the lions share of that estate.

Each of them were going to get 25 percent of that estate. That’s almost a million dollars they were going to get.

The new will, which was done in 2012 just months before she passed away at age 94, only gives then twenty-five thousand dollars.

So their lawyers are challenging the new will and trust that were done in 2012 based on the argument that she did not have capacity to enter into a new will and trust.

I don’t know all the facts here. It’s a very interesting scenario but apparently they are arguing that this police officer had undue influence. He left a picture of himself and his children, but not his wife, in her home and that factors into this.

So, there are some things we want to consider here. A lot of people may want to help their parents look at their trust and see if there is anything that needs updating.

Sometimes it is too late. Sometimes that parent already has dementia and already is not able to think clearly. We can’t change a trust if that person is not competent.

In order to be able to make a change to a trust you have to be able to know basic things like your birth date, and what day it is, and who the president is and those kinds of things. And so lawyers will ask those types of questions to determine if that person is competent.

In this case in New Hampshire, the lawyer actually did a video of the signing, when the women signed the will and trust in 2012. According to the lawyers who are now challenging that, even in the video he treats her like she has not got capacity. It’s an interesting topic.

This is the point that I want to make – if you have parents who are reaching that age where you are not sure that they are going to be able to make decisions on their own, it might be well to look at their estate plan and see if there are changes that need to be made. Once they go down that path of dementia, it is really difficult to make those changes.

You have to get a court appointed  guardian. You have to do lots of things, before they pass away, in order to make any changes in that will or trust and you don’t want to go down that road if you don’t have to.

One of the points of doing a will and a trust is so you don’t have to pay legal fees and go through those hassles.

Just a point of caution — consider where your parents are physically and mentally. Do you know what their estate plan says? Because it might not be what you think it is. So check it now because it is really hard to change if they are no longer competent to do so.

No Comments

Leave Comment