Gabriel Katzner - May 2, 2023 - Wills
Senior Man registering for examination at the health center

No one wants to believe their family member would contest their estate plan by alleging they weren’t competent to write it.

This is more likely when you disinherit someone who ordinarily would have received money and property from you or if you have been diagnosed with a mental condition that is associated with deteriorating mental capacity.

But contests are more common than you would think. Sometimes it’s because a family member does not receive the inheritance they were expecting or was led to believe they might expect.

To rectify a perceived wrong, they may file a lawsuit alleging that the writer of the Last Will and Testament or the trust’s grantor was not mentally competent when they created it.

If the court finds that you did not have the mental capacity to sign your estate planning documents, they will be invalidated. State law will be used to determine who will receive your money and property.

Unfortunately, they may not be people you would have chosen.

In most states, there is the presumption that everyone has the capacity to create their estate planning documents and the right to transfer their property to whomever they would like.

This means that the person challenging your mental capacity has the burden of proving that you were not mentally competent when your estate plans were created.

Here are some steps you can take to provide evidence that you were mentally competent when you created your estate plan.


Get a Complete Physical Exam


The best evidence that you were of sound mind when you wrote your estate documents would be to have a complete medical examination on the same day or as close to the same day as you sign your documents as possible.

Ask your doctor to thoroughly document their findings, evaluate your mental capacity, and document their medical opinion in writing.

Your estate attorney can provide guidance to your physician regarding the standards that must be met to meet the requirements for having the capacity to execute your estate planning documents.


Make a Gift


One way to show a family member that you fully understood the choices you made when writing your estate documents would be to make a small gift to the person you plan to disinherit or give a proportionally smaller inherence to than they were expecting.

If this person accepts the gift and wants to keep it, they are admitting that you had the capacity to make the gift.

It only makes sense that if you have the mental capacity to make a gift to them that they want to keep, then you had full capacity when you signed your estate documents.

This strategy will only work if your state’s rules for having the capacity to make a gift and signing a will or trust are the same.

If the requirements to demonstrate mental capacity are higher when signing a will or trust than when making a gift, then this plan will not meet your needs.


Document the reasons behind your decision


While working with your estate attorney, explain to them the reasons behind your decision to disinherit a child or other family member or for providing them with a smaller inheritance than they expected.

Write down these reasons and record the names and dates when you told family members, friends, or financial advisors about your plans.

This will serve as a record of how carefully you made this decision and the rationale and deliberation underlying the decision.

Keep this document with your estate plans.

Do not list these reasons in your will or trust documents to avoid further complications that may develop during the contest.


What are the standards to meet to show mental competence


State laws require a certain level of understanding that must be met when a person signs their estate documents.

It is irrelevant that you meet these requirements before or after you sign the documents, only that you meet them at the exact time that you sign them.

This is a very important point. Many medical conditions are characterized by fluctuating levels of mental competence.

For example, a person with early dementia may be mentally competent when they sign their estate planning documents but have other days that they are less lucid.

Of course, having mental competence does not mean that you must fully understand all of the legal terminology found in legal documents.

Your estate planning attorney will help here. You just need to have a basic understanding of the documents you are signing and why you are signing them.




The standard for testamentary capacity, or having the mental capacity to sign a will, is relatively low. To have the capacity to make a will, you must:

  1. In general, know what type and how much property you have (not details about each item)
  2. Know who you plan to leave the property to (not every detail, just in general)
  3. Be aware that the purpose of a will is to transfer your property upon death


Lifetime Gifts


Some states apply the same requirements for mental capacity to lifetime gifts as they do to wills, while others have more stringent requirements.

In states with a slightly higher standard, you must meet the requirements for testamentary capacity and understand the impact of your gift on the receiver.

You must understand how your gift will affect your financial security and the financial security of people who depend on you.



Some states apply the same requirements for trusts as for wills, but others apply more stringent requirements.

If you live in a state with stricter requirements, you must be able to understand:

  1. The rights, duties, and responsibilities created or affected by the trust
  2. Its significance
  3. The consequences for the creator of the trust and others affected by its creation
  4. The risks and benefits of the transaction


The standard may also vary depending on the type of trust at issue.

For example, a testamentary and revocable living trust may be evaluated using the same standards to determine the capacity to sign a will.

Higher standards may be required for an irrevocable trust because it cannot be amended or revoked.

If you are concerned that your mental capacity may be questioned because you anticipate someone will be dissatisfied with their inheritance, give us a call.

You can take several steps to avoid lawsuits or conflicts after you pass. We can help you take measures to prove your mental capacity when you sign your estate plan.

Contact us for more information about proving competency, and schedule a call with us at 855.631.3457 to learn more about how to protect those most important to you.


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