Testamentary intent is an important component of a testator’s will. Typically, a testator must be “of sound mind” to create a valid will. Many clients want to know if a person with Alzheimer’s can change their will.
Oftentimes, wills are amended through documents known as codicils. An individual may still be of sound mind even if they suffer from Alzheimer’s or dementia. Therefore, a person with Alzheimer’s or dementia may alter their will if the individual is mentally competent.
Mental competence does not mean perfect mental clarity. An individual who suffers from specific health conditions may experience symptoms that affect their cognition, but they can still be mentally competent under the law. An estate planning attorney can help you determine if a family member is mentally competent enough to alter their will.
What are the requirements for a person to be considered mentally competent?
The following are the most common requirements considered by a court when ruling on whether an individual is mentally competent:
- The individual fully understands the extent and nature of their personal property
- The individual is cognizant of the heirs and inheritance divisions currently in the will
- The individual recognizes and can articulate the purpose of a will and disposal of estate property
- The individual understands the interconnected nature of each of these three statements
These requirements can be proven under many different circumstances, but they must all be met in order for someone with Alzheimer’s to change their will.
Also, these are the basic requirements for mental competence as it relates to amending a testamentary instrument such as a will. A testator may want to amend their will after receiving an Alzheimer’s diagnosis. As long as the testator can satisfy the requirements listed above, they can alter their will.
How does a testator in Virginia alter their will?
The most common way to amend or alter a will is to create a codicil.
Codicils
A codicil supplements an already existing last will and testament. Codicils are helpful because they allow testators to change a portion of a will without rewriting and revalidating the entire will.
A codicil is valid in the State of Virginia under Virginia Code Section 64.2-403 if the codicil is in writing and signed by the testator or at the testator’s direction. Also, the codicil must be signed before two witnesses. The witnesses may be any person over the age of 18 years. These requirements are statutory, and they must be satisfied for a will to be valid in the State of Virginia.
A codicil is also valid in the State of Virginia if the codicil is drafted in the testator’s own handwriting and signed by the testator. However, this type of will must be proved by two disinterested witnesses. A disinterested witness is one who does not stand to benefit in any manner from the will of the testator.
New wills
A testator can also create an entirely new will. This option is better for individuals who have created multiple codicils. If a testator creates numerous codicils, then it can be difficult to determine testamentary intent after their death.
A skilled estate planning attorney can help you decide whether the testator should draft a codicil or a new will. Typically, a testator revokes all their prior wills before writing a new will.
Contact Select Law Partners PLLC today in Fairfax, Virginia
Wills, trusts, and estates are complex. Many individuals do not understand how complicated estate planning can be if they are not familiar with how these legal documents interact with one another. Retaining a knowledgeable estate planning attorney can help you protect the legal interests of the testator and your family members.
Reach out to Select Law Partners PLLC today at (855) 541-4867 to learn more about how we can help you with your estate planning needs.
