The mental illness of a loved one can be a very distressing condition for members of the family. In recent years, dementia and Alzheimer's disease seem to have taken on epidemic status, and this can often lead to the affected party finding it difficult to make legal decisions in their waning days. Can the mental capacity of the recently departed be a basis for contesting a will? What needs to be considered?
The whole idea behind a will is to allow the person to leave their possessions and property to whomever they should wish following their departure. In legal terms, this is known as "freedom of testamentary disposition." A question develops, therefore, if the person was known to be suffering from mental incapacity in the time leading up to their final hours. Did they have the legal ability to create their latest will and should it be legally binding, thereafter?
Usually, such a determination has to be made by a senior member of the medical profession, in charge of all the information related to the case. If there are grounds to suspect that mental incapacity may be present prior to the death, it's always a good idea for the testamentary capacity to be checked at the time such a will is signed.
Fundamentally, the person needs to be very clear what they are signing and understand the precise nature of the document. They do need to know the value of the property in general terms and be aware that they should leave it to beneficiaries. They must be aware of the identity of the family members or the people to whom they wish to bequeath the property and it should be clear that these individuals or entities have a reasonable right to claim the property. If they'd been previously diagnosed with a specific mental illness however, then this will not give any subsequent will any legal capacity.
Members of the family should be very protective of their loved ones in terms of access to individuals who may have ulterior motives. It's not unheard of for representatives of a "cause" to suggest to the person that they bequeath many or all of their assets to that cause. If they are able to persuade the loved one to do so for whatever reason and sign a new will, this can be taken at face value by any court in the absence of the aforementioned caveats.
Usually, where a will can be successfully challenged on the basis of testamentary capacity then the previous will take precedence, so long as there are no similar questions attached. If no former wills exist then this situation is called "intestate" and one of the family members will be given the responsibility of sorting out the details.
If you have other questions or want to know more, contact a wills dispute expert to get answers.