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Alzheimer’s and Mental Ability in Texas Estate Planning

Alzheimer’s and Mental Ability in Texas Estate Planning

It is simple fact that, regrettably, millions of Americans are involved in trust and estate lawsuits each year. Although popular wisdom is to “avoid lawsuits like the plague,” in the context of a loved one’s estate, litigation is sometimes simply unavoidable in order to preserve the intended gift.

Understanding Alzheimer’s in Regard to Estate Planning

For example, let’s take a hypothetical situation where a mother, who has been diagnosed with Alzheimer’s, is persuaded to change her estate planning in San Antonio. Significant and complicated questions will likely arise as to whether mom had the capacity to understand what she was doing in making a new will.

Or perhaps the situation involves a change to beneficiary designations on the signature card at the bank. Either way, there are many nuances in the statutes, case law, and physiology/medicine that must be understood to answer the question.

Measuring Mental Ability in Texas Estate Planning

The first step is typically to gather as much medical information as possible to figure out how serious the concerns of capacity were at the point that the new will or change in account information was undertaken.

Questions asked by Jury for Mental Ability of the Grantor

In Texas, a jury or fact finder would be asked whether, at the time the key document was signed, mom had sufficient mental ability:

  1. To understand the business he/she is engaged in
  2. To understand the effect of her act in signing a new document about her property (the will)
  3. To understand the general nature and extent of her property
  4. To know her family and who her property would normally or naturally pass to
  5. To know the claims of her family upon he
  6. To have sufficient memory to collect in her mind the elements of the business to be transacted
  7. To be able to hold the elements long enough to perceive their obvious relation
  8. To form a reasonable judgment as to these elements

For example, an Alzheimer’s patient who recognizes her family but can’t recall new facts after a few minutes may have a problem fulfilling #6. Of course, every situation is unique and must be exhaustively studied to properly understand whether there is, or is not, capacity.
If this situation rings a bell, gives us a call and we will be happy to help guide you.

James Carter | Texas Will Contest Lawyer

James W. Carter

Author
James Carter practices law in the areas of probate, trust, and real estate litigation at Langley & Banack’s San Antonio location. Mr. Carter is known as a strong fiduciary litigation attorney with a proven track record in trying complex will contest cases. The San Antonio Business Journal presented Mr. Carter the Outstanding Lawyer Award in 2016, and he is also AV-rated “Preeminent” by Martindale-Hubbell. Mr. Carter is a frequent speaker and author on matters involving Texas probate, estate, and trust litigation.

 

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