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Phoenix, AZ 85004
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Planning for the Future with Gunderson Denton
Does Your Family Member Have Capacity To Create A Will?
Capacity is an issue that surfaces when one has been diagnosed with a medical condition that caused a decline in their mental ability. A decline in mental ability typically affects memory, thinking, and problem-solving skills. When someone has been diagnosed with a debilitating condition such as dementia or Alzheimer’s disease, a common question arises regarding whether it is too late for that individual to create a will. If a person passes away without having made a will, they are said to die “intestate.”
Generally, the policy of law favors testacy. That is to say, the law prefers every individual have a will in place before they pass away. Accordingly, the law presumes that a testator, or person who attempted to create a will, had the required mental capacity to execute a will.
In Arizona, the legal standard regarding capacity to create a will is whether the individual understood “the nature of his act, the nature or character of his property and the natural objects of his bounty.” What does this mean? First, will the testator understand the act that he is undertaking? Can he understand that he is making a will? Second, is the testator able to identify all of the property that she wishes to dispose of by will? And finally, is the testator able to recognize and identify his family and friends that he wishes to include in his will? Keep in mind, there is often not a clear definitive answer to these questions. If your family member has been diagnosed with a mental condition that will progress, it is imperative to encourage him or her to create or update the necessary legal documents as soon as possible.
However, what if time slipped by and your loved one didn’t have time to attend to legal matters before his or her mental capacity declined significantly? Even if it would appear that one might not have full capacity, there may be “moments of lucidity.” With the assistance of an attorney and/or family doctor, it may be determined that your loved one is capable of creating a will during those moments of lucidity. The bottom line is this: If your loved has not created a will, and has diminished capacity, there is still the possibility of creating a legally valid will. The best course of action is, of course, to contact our office today for a consultation. We will be happy to guide you through the question of legal capacity and the ability to create a valid will.
40 N. Central Avenue, Suite 1400-1532
Phoenix, AZ 85004
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