Q: Our mother recently passed away. She had executed a will last year after being diagnosed with early-stage dementia. We are concerned that her will may be challenged in Court as some family members have raised concerns about the influence of a caretaker who was present during the creation of the will and appears as a beneficiary in the will. What should we expect if the will is challenged on these grounds?  

A: The law presumes that the person who is making a will is of sound mind. The recent diagnosis by itself is not conclusive of the fact that your mother lacked capacity to make the will.

In addressing whether dementia had an impact on your mother’s capacity to make the will, the court will consider the evidence of the witnesses to the execution of the will. The court will consider whether, at the time of making the will, your mother knew and approved the contents of the will.

If the validity of the will is challenged, the diagnosis made after the execution of the will by itself would not be sufficient to invalidate the will.  The court will consider evidence from the witnesses present during the execution of the will to satisfy itself that your mother was aware of her actions when executing the will. If there is sufficient evidence to demonstrate that your mother was able to recall her assets and her dependents and understood her actions while distributing the assets among them, then she will be deemed to have had the capacity to make the will despite the diagnosis.

Regarding the issue of the caretaker who was present during the signing of the will, the court will consider whether there was any undue influence on your mother by the caretaker. Undue influence occurs when a testator is coerced into making a will or some part of it, that they do not want to make.

In determining whether the caretaker improperly influenced your mother to name them as a beneficiary in the will, the court will consider whether your mother was coerced or manipulated into naming the caretaker as a beneficiary. Some of the evidence to be considered includes testimony from witnesses who are privy to the relationship that your mother has with the caretaker. If there is a history of the caretaker having a position of general control over your mother’s actions that would suggest that your mother was coerced into including the caretaker as a beneficiary in the will, then the court would find that there was undue influence on your mother to include the caretaker as a beneficiary in the will. In the absence of any evidence of coercion, the gift to the caretaker would be legitimate.

Should you have any queries or require any further information, please contact us at info@cfllegal.com.