As you may know from experience with friends and relatives, people generally do not go to sleep with full capacity one night and wake up incapacitated the next morning. Instead, the person’s level of capacity often decreases over time.
If a person already has begun to go down this path, can he or she execute a will? The answer may be yes. In other words, the mere fact that a person has somewhat impaired capacity does necessarily mean he or she cannot execute a will – the issue is the degree of impairment.
A recent case serves as a good reminder that New Jersey courts view capacity in this manner. The recent case involved a woman who had no children of her own, but did have two sets of nieces and nephews – one in the United States, the other in Italy. There was strong evidence that the woman greatly favored her American relatives and did not want anything to pass to her Italian family. The Italian relatives challenged her will, which left her entire estate to her American side, by alleging that the woman lacked capacity to execute it. They argued that their aunt could appear to be alert, but she would have concerning lapses during which she appeared confused.
The court ruled that the Italian family failed to show that the woman did not understand, generally, what property she was disposing of and who the “natural objects of her bounty” were, meaning those people she would be most expected to leave her property. Therefore, they did not show that the woman lacked capacity to make a will.
Importantly, the court ruled that the woman still had capacity even though she had “mild dementia.” This raises several points that might be relevant in a guardianship case or a will contest filed in New Jersey:
In general, a person’s level of capacity is a fact-sensitive issue, and it can be difficult to predict how a court will rule on a given set of facts. For that reason, it is worthwhile to seek counsel if you are considering a will challenge or guardianship action, or if you are unsure whether a will executed by a family member or friend can be subject to challenge for lack of capacity.