QUESTION: My uncle wants to make a Will, but he cannot remember alot of things and some people say he has dementia. Can he still make the Will?
Answer: This is a testamentary capacity issue. If he does not have the capacity, then the Will could very well not be valid.
Question: How do you tell if somebody has testamentary capacity?
Answer: A determination that a person lacks the capacity to do a certain act must be supported by evidence of a deficit in at least one of the following mental functions and evidence of a correlation between the deficit and the decision or act in question: alertness and attention; information processing; thought processes; and the ability to modulate mood and affect.
A deficit in any of the specified mental functions is relevant only if, by itself or in combination with other mental function deficits, it significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.
The mere diagnosis of a mental or physical disorder is not sufficient by itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.
Question: So what criteria must be shown?
Answer: Every adult (including an emancipated minor) of sound mind can make a will. A person is not mentally competent to make a will if, at the time the will is executed, either of the following is true: The testator does not have sufficient mental capacity to: Understand the nature of the testamentary act; Understand and recollect the nature and situation of his or her property; or
Remember and understand his or her relations to his or her living descendants, spouse, parents, and those whose interests are affected by the will.
The testator suffers from a mental disorder involving delusions or hallucinations that cause the testator to choose a disposition for his or her property that he or she would not have chosen but for the delusions or hallucinations.
Question: Is there any other test for testamentary capacity?
Answer: There must be an ability to communicate. This provides that a person lacks capacity to make a decision (presumably including testamentary decisions) unless the person can communicate, verbally or by other means, all of the following: (a) The rights, duties, and responsibilities created by or affected by the decision; (b) The probable consequences for the decisionmaker and, when appropriate, the persons affected by the decision; and (c) The significant risks, benefits, and reasonable alternatives involved in the decision. Therefore, if there any issues, make sure it is taken care of before the Will is made.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
