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Mild Dementia May Not Mean Lack of Capacity

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:

  1. Unless a person’s capacity cannot reasonably be questioned, the medical evidence is going to matter, and the strength of the medical evidence on either side often can be the difference between winning and losing. In a guardianship proceeding, for example, how detailed are the certifications from the medical professionals and from the person applying to be guardian? If full guardianship is sought, do the proofs support the conclusion that the alleged incapacitated person needs that level of protection (or, from the other side, that such a level of intrusion into the person’s life is warranted)?
  1. The standard of proof might make the difference. In most civil cases, the burden of proof is “preponderance of the evidence,” meaning “more likely than not.”  In a will contest, however, the party challenging the will must show lack of capacity by “clear and convincing” evidence, which is more than a preponderance of the evidence, though less than the criminal standard of “beyond a reasonable doubt.”  It is important to keep this added burden in mind if you are considering a will contest or guardianship action – if the evidence on capacity is going to be mixed, it might not be enough to clear the hurdle of clear and convincing evidence.
  1. Similarly, in a will contest, the challenger’s job is made more difficult by the fact that testamentary capacity (capacity to make a will) requires the lowest level of capacity recognized by the law. For example, a situation may exist in which a person does not have capacity to enter into a contract or a marriage, yet at the same time still has capacity to make a will.  This low standard is often emphasized by the party supporting the will.

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.