Your aged parent begins to show signs of suffering from cognitive decline, illness, or even dementia. Late in life, they unexpectedly change an earlier will or estate plan from one sharing their property among family members to a disproportionate distribution favoring selected persons, caregivers, or strangers, and leaving nothing to some close family members. You and your surviving family are disappointed and may understandably question whether your parent truly understood what they were doing.
Proving testamentary incapacity or legal mental capacity in Maryland, however, requires more than just showing that the testator was elderly, forgetful, medically ill, suffering cognitive decline, or even diagnosed with dementia. The critical factual question is a much narrower inquiry: did the testator have sufficient mental capacity at the time the new will was made and executed?
Testamentary Capacity Is a Legal Standard, Not Simply a Medical Diagnosis
Maryland law recognizes a strong presumption in favor of testamentary capacity. Consequently, a person challenging a will on the basis of a parent’s lack of mental capacity cannot prevail merely by presenting evidence that the testator experienced declining health or cognitive problems before or after the execution of the challenged will. Unless the testator was suffering from permanent insanity, his competence at the time of executing the will is the critical fact. Wall v. Heller, 61 Md. App. 314, 486 A.2d 764 (1985).
The Time the Will Was Signed Matters
The central lesson under Maryland law is evidentiary proof relating to the testator’s mental condition at the time the will was executed. A medical diagnosis, standing alone, may not establish testamentary incapacity. For a successful challenge, the evidence needs to connect the testator’s cognitive impairment to his or her ability to understand the testamentary act at the relevant time the will is signed.
What Evidence Can Help Establish Lack of Capacity?
Evidence for a lack of capacity must look beyond a medical diagnosis. Circumstantial evidence surrounding execution of the disputed will is helpful, including
- medical records close to the execution date;
- neurological or cognitive evaluations;
- physicians’ observations;
- nursing and home-health records;
- testimony from family members and caregivers;
- evidence concerning the testator’s ability to identify family members;
- evidence concerning the testator’s understanding of his or her assets; and
- prior wills and estate-planning documents.
But the strongest case is evidence related directly to the time the disputed instrument was signed. While a dementia diagnosis months or years before execution is certainly relevant, evidence showing that the testator was severely confused immediately before and after execution may provide considerably more useful evidence concerning the testator’s condition at the critical time. Periods of prior confusion do not necessarily establish that the testator lacked capacity when the will was signed. For example, did the decedent understand that he or she was making a will? Did the decedent understand the property being disposed of? Did the decedent understand the beneficiaries and other natural objects of his or her estate planning? What was the decedent’s mental condition when the instrument was actually executed? Thus, testimony from the attorney who drafted the will and the witnesses to its execution regarding the testator’s understanding of his or her assets and the disposition of those assets under the will may prove critical.
These questions turn a generalized allegation of cognitive decline into a fact-specific examination of testamentary capacity.
Testamentary Incapacity and Undue Influence Are Different Claims
There is an important distinction between lack of testamentary capacity and undue influence. Your parent could possess sufficient mental capacity to execute a will and nevertheless be subject to improper influence. For more about undue influence, see 7 Red Flags of Undue Influence in a Maryland Will Contest. Conversely, a person could lack testamentary capacity even if no one improperly influenced them.
The Bottom Line
Challenging a Maryland will on the grounds of testamentary incapacity is highly fact-dependent. Advanced age is not enough. Memory problems alone are not necessarily enough. And even a dementia diagnosis does not automatically invalidate a will.
The dispositive issue is whether the testator possessed the legally required capacity when the will was executed. That makes contemporaneous medical evidence, witness testimony, the drafting attorney’s file, and a chronology of events and observations particularly important in litigating a Maryland will contest.
