Reviewed by Letha Sgritta McDowellLetha Sgritta McDowell is an attorney practicing in both Virginia and North Carolina. She is a fellow of the American College of Trusts and Estates Council, a certified elder law attorney, and a past president of the National Academy of Elder Law Attorneys.

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The last thing a family of a person with Alzheimer’s or other dementias wants to think about is legal matters. But, as a family cares for a person with dementia into the senior’s final days, it is natural to want to know how best to settle the senior’s estate. Sadly, seniors with dementia are at increased risk of fraud and coercion. These risks aside, there is also the chance that the will was not executed properly or does not fully account for an estate. Changing or contesting the will of a loved one with dementia is a challenging endeavor. Here, we’ll examine whether a person with dementia or their family can change that senior’s will on their behalf.

Key Takeaways

Seniors are at a high risk of fraud and coercion. Senior fraud increased significantly between 2020 and 2021, and unscrupulous individuals may attempt to compromise a senior’s estate.
Only select parties have standing to change or contest a will. And, a will can only be contested in specific circumstances.
To contest a will of a deceased individual, a person must file in probate court. Conversely, only a living individual, who is mentally capable, may change their own will.
A person with a dementia diagnosis can change their own will, but there are stipulations. They must have a full understanding of their estate and their full plans for it.

Why might you consider contesting the will of a loved one with dementia?

Seniors in general are at an increasing risk of scams, according to the National Council on Aging. They report that, in 2021, there were 92,371 senior fraud victims, with associated damages totaling approximately $1.7 billion. These numbers represented an astounding 74% jump from 2020 and are conservative by some outlets’ accounting.^[01] Furthermore, recent research indicates there may be a correlation between susceptibility to fraud and the onset of dementia.^[02]

While fraud and scams may result in the loss of noticeable amounts of cash or other assets, a senior’s entire estate may not be under threat in these scenarios. However, a senior with dementia may be at risk of coercion by a recent acquaintance or even family members, and this coercion could put that new party in control of a senior’s complete finances.

Here are some common scenarios: A new friend or love interest puts pressure on a senior to be included in the senior’s will. An estranged child or relative reenters the picture and tries to repair a damaged relationship, perhaps using guilt or memories of better times. Both scenarios involve pressure from the outside party, which is called “undue influence.”

Legally and generally, undue influence is defined as pressure by one party on another for the second party to sign a contract or, in this case, a will.^[03] Note, though, according to OurParents elder law expert Letha McDowell, for there to be undue influence, the party applying pressure should both have a special relationship with and stand to receive a substantial benefit from the testator, or original maker of the will. The testator must also be deemed to have a weakened intellect when they signed the will. Additionally, the pressure must result in a decision the testator would not normally have made.

Sadly, as cliched as all this may sound, these kinds of things do happen, and they can cause a family a lot of distress.

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What to know when contesting a will

Before you begin hunting for a lawyer, it’s important to know if you’ll even be allowed to contest a particular will. This is called “having standing.” Laws vary state to state, but generally, only those named in the will and those who would benefit if a current will is invalidated have standing.^[04] Determining if you truly have the right to challenge a will is best done with the help of legal counsel.

Also, property and assets can pass from one person to another outside of a will. For example, retirement plans let account holders set beneficiaries, bank accounts can pass via a process called right of survivorship, etc.

Additionally, a person can only contest a will under specific circumstances. Generally, these include the following:

The person who ordered the will, the testator, whether alive or dead, is thought to have been incapacitated at the time of its writing
The will is thought to have been written under pressure, or undue influence
There are insufficient witnesses available to substantiate the will, or those available are seen as inappropriate
The will’s provisions are believed to be unclear
A later, valid will containing different provisions can be produced ^[04]

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Can a person diagnosed with dementia change their will?

Yes, a person with dementia can draft, change, or revoke a will so long as they know the following:

The extent of their property
The objects or assets that comprise their property
How the will disposes of their property
How all the preceding elements combine together to form a plan ^[05]

How to contest or change a will

To contest a will after a person has passed away, a person with standing must file a petition with the probate court in the county in which the deceased died. After filing, as with any civil suits, there may be a deposition or depositions, evidence may need to be collected and submitted, hearings may occur, etc.^[06]

Note that the evidence needed depends on the nature of the petition. If financial abuse is suspected, then the petitioner should collect copies of bank statements, receipts, tax returns, and any similar documents. Additionally, relevant witnesses should be notified.^[07]

How to change a will if your loved one has dementia

Provided your loved one knows their property and the plan they have for it, they should be able to make changes to their will. And, the following actions may help reduce potential future challenges to an amended will:

Have a medical professional sign off on your parent’s mental capacity at the time changes are made.
Have impartial witnesses present during the alteration of the will.
Consider recording the meeting in which the will is altered. This will create an artifact to which future lawyers and other experts can refer if the amended will is contested. Remember to always obtain consent to record from all participants beforehand.^[08]

It’s important to note that, so long as they retain the ability to make their own decisions, only the testator can change their will. Even an agent under power of attorney cannot revise a will on the testator’s behalf.^[09]

Next steps if you’re unsure how to proceed

Whether you or your parents are writing a will, looking to update one, or contest one, the best thing you can do is secure the help of an attorney specializing in senior-related matters. These lawyers are called elder law attorneys, and their national association — NAELA — maintains an online directory of its members. Most reputable lawyers will offer a free consultation and will make it clear if any cost for their services will be involved.

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References

Waterman, G. (2022, July 27). The top 5 financial scams targeting seniors. National Council on Aging.
National Institute on Aging. (2019, June 6). Scam susceptibility may signal risk for cognitive decline.
Legal Information Institute. Undue influence.
FindLaw. (2021, October 28). Who can challenge a will?
Legal Information Institute. Testamentary capacity.
Sigel, Z., & Suh, E. (2021, November 2). Contesting a will: How to contest a will and why. Policygenius.
Lake, R. (2022, November 3). How to contest a will in probate court. SmartAsset.
The Inheritance Recovery Attorneys, LLP. (2020, January 27). Can a person with dementia change their will?
American Bar Association. Power of Attorney.

Meet the Author

Haines Eason

Haines Eason is a sandwich generation caregiver and senior copywriter at OurParents. He’s served as senior and managing editor with the company and has covered nearly all senior-relevant topics. He holds bachelor’s and master’s degrees from the University of Montana and Washington University in St. Louis, respectively.

Reviewed byLetha Sgritta McDowell

The information contained in this article is for informational purposes only and is not intended to constitute medical, legal or financial advice or create a professional relationship between A Place for Mom (of which OurParents is a trademark) and the reader. Always seek the advice of your health care provider, attorney or financial advisor with respect to any particular matter and do not act or refrain from acting on the basis of anything you have read on this site. Links to third-party websites are only for the convenience of the reader; A Place for Mom does not recommend or endorse the contents of the third-party sites.

Changing or Contesting a Will Due to Dementia