Getting Legal Support During a Difficult Time
Dealing with the death of a loved one is never easy, and when that person also had dementia, it can be especially difficult. When someone suffers from cognitive decline, it can raise questions and concerns about when and how they made their last wishes known - particularly if those wishes involve a will or other legal document.
Tennessee law allows families to challenge a will based on evidence of incapacity at the time it was created, but the process requires diligence and careful attention. In this blog post, we'll go over what you need to know about contesting the will of someone who has or had dementia (or other cognitive impairment).
Reasons You Might Want to Contest the Will of Someone with Dementia
We understand that contesting the will of a loved one with dementia is a delicate matter, but there are several valid reasons to do so. Firstly, dementia can affect one's decision-making capabilities. As such, a person with this condition may be more vulnerable to making uninformed or confused decisions, such as unexpectedly and without clear reason changing their will or estate plan.
Secondly, dementia can make a person vulnerable to undue influence and exploitation, as others may more easily sway them to make decisions that are not in their best interests. If there are suspicions that the existing will may have been compromised, it is important to investigate these concerns. Doing so can help you honor the true wishes of your loved one and ensure that their beneficiaries inherit their estate as intended.
Common red flags that a will may not represent the true wishes of the individual include:
- There are obvious irregularities in the will
- The terms of the will differ greatly from what your loved one had previously expressed
- You suspect your loved one may have been subject to undue influence or exploitation
If you suspect your loved one's will may have been compromised by their dementia, it is important to act on those concerns. Conditions that involve cognitive decline can be incredibly difficult to manage, especially when it comes to sensitive legal issues like estate planning.
What Is the Process for Contesting a Will in Tennessee?
The person attempting to contest a will must have legal grounds to do so. Common grounds include a lack of testamentary capacity, undue influence, fraud, and mistakes. The next step is to file a petition with the probate court in the county where the will was filed. The petitioner must provide evidence to support their claim.
Typically, only certain people are eligible to contest a will, including:
- Beneficiaries of the will
- Creditors
- Beneficiaries of a previous will, even if they are not named in the current will
- Interested parties who would have had a claim as a beneficiary according to intestacy laws
If you need to contest a will in Tennessee, your first step should be to consult an experienced probate attorney who can help you understand the grounds for contesting the will and guide you through the legal process. Your attorney can help you gather evidence, file a petition with the court, and represent you in mediation or trial if necessary.
When Is a Will Automatically Revoked in Tennessee?
We are sometimes asked if the fact that someone had dementia will cause their will to be automatically revoked. In Tennessee, this is not the case. Instead, if you suspect that a family member with dementia’s will isn’t valid, you will have to contest it through the courts.
However, there are some situations in which a will is automatically revoked in Tennessee. For example, if you're a resident of Tennessee and have written a will, you must keep in mind that if you get married after that will is established, your will is automatically revoked. This is according to Tennessee Code Ann. § 32-1-201. Your will is similarly revoked if, after drafting, you have any subsequent children.
What does this mean for you? If you pass away after getting married or having new children, and without having drafted a new will in light of that marriage or those children, your assets and property will likely be distributed according to the state's intestacy laws rather than your original will.
Turn to Casey, Simmons & Bryant, PLLC, for Guidance
It is important to remain vigilant when a family member or loved one develops dementia or other cognitive impairments. Understanding how wills work and how having a cognitive impairment can potentially impact the validity of a will is crucial to protecting vulnerable individuals from exploitation and undue influence.In these situations, a knowledgeable attorney can guide you in either contesting a will or helping your loved one craft an estate plan that is in their best interests.
Other estate planning tools you may wish to consider include:
- Trusts, including special needs trusts
- Powers of attorney
- Healthcare directives
- Guardianships
Call our law firm today for help with will contest issues or guidance on estate planning. Our attorneys are standing by to help.
