Longer life spans and the attendant mental capacity issues, as well as society’s expanding willingness to litigate, has fueled an increase in estate controversy litigation. Whatever the causes or merits of the claims, estate planning attorneys must be aware of not only the mental capacity standards for a client to validly execute estate planning documents, but also the steps to take to prevent against a successful challenge to an estate plan due to undue influence.
Life expectancy at the turn of the 20th century was a mere 49 years, while it is now over 77 years.1 The formulation of the testamentary capacity standard took place in an era when dementia was a rare phenomenon and the number of individuals who learned to live with and cover for its effects was extremely low. The low testamentary capacity standard may have been outpaced by the effects of an extended life span and the higher incidence of dementia. This article discusses steps to effectively identify the separate, yet intertwined, issues of diminished mental capacity and undue influence and how to best assist clients who are affected by them.
