Did Mom Have Dementia When She Signed the Will? 5 questions you need answers to

Did mom cut you out of her will or Florida estate?

Did she leave you less in her will than you expected? Did her will leave a major portion of her estate to someone you did not expect to inherit?

Every week in Florida probate circles, if not daily, beneficiaries of estates and trusts ponder these questions. Mom dies. You get a copy of the will and are shocked at what it says. How could this happen? What happened?

So consider this : mom dies and you read in mom’s Florida will that a neighbor of mom’s, who lives in the same condo complex in Boynton Beach, Florida, gets one half of the estate. You only get ¼ and your only brother gets ¼ ! You have never even met “the neighbor”-and the neighbor is getting more than you and your sister!

So let’s cut to the chase: you are wondering if mom did not have the right mental capacity to make her last will……to understand what she was doing. Maybe mom was aging, slowing down, maybe she needed more help as the years went on. Was mom diagnosed with dementia? Did the dementia keep mom from knowing what she was doing? If dementia prevented mom from understanding what she was doing when she signed the will, that will may be valid. You may be able to object to the will based upon mom’s dementia. Here are five important things that you need answers to:

1. Who wrote the will? Was mom’s will prepared by her long time Florida estate planning attorney who knew mom well ? And knew her mental state or mental health history? Or was it purchased on the internet by downloading a form? Was the form purchased at an office supply store? Was it printed on the neighbor’s computer? Maybe the neighbor wrote it. Another question you want answered: if there was an attorney who prepared the will, how long did mom know that attorney (five minutes or five years?), who hired that attorney, who paid that attorney and who kept the original will? Did mom meet the attorney, or did the neighbor get the attorney? Remember, those who suffer from dementia are more susceptible to undue influence.
2. Was mom taking meds? If mom was taking medication, you need to know what meds mom was on, if and when she took them on the day she signed the will, and how the possible side effects were, or were not, affecting her. There are some wonderful drugs that assist aging parents and loved ones who are stricken with dementia. Namenda is a drug by Forest Labs which my mom took during the last year of her life. My mom suffered from dementia and after she was diagnosed, I noticed a great improvement. You can learn more about Namenda at their website : www.namenda.com. Although not all patients who suffer from dementia are diagnosed with Alzheimers, there is much to learn about aging www.alzfdn.org. Aricept is another drug that assists those who may suffer from symptoms of dementia. You need to know what drugs mom was taking, and, perhaps more importantly, what drugs mom was NOT taking, but should have been.
3. What do the medical records say? When you are involved in probate litigation over a will, and there is a belief that mom lacked the ability to know what she signed, you need to read her medical reports and records. What do her doctors say? In the probate world, probate lawyers refer to this as whether mom lacked the requisite “testamentary capacity” to execute or sign a will. Did mom know who her family members were? Did she understand the act of signing a will? Would she be able to explain that she was giving a neighbor (someone outside the family) one half of her estate: and giving her only daughters ¼ each? Were nuerological tests given? Are there notes in the files about dementia, confusion, memory loss? If neurological tests or exams were not given, you need to know why. See what the medical records show. Issue subpoenas to hospitals, doctors, and other healthcare workers who treated mom. Then review the medical records with one who understands them and knows what to look for.
4. What do the health care workers say? Mom probably had a primary care physician, or internist, perhaps a nuerologist and maybe even health care workers or aids. If mom was in an assisted living facility or a nursing home, even part time, she may have been seen regularly by nurses or nurses assistants. Mom may even had her own staff that came in everyday or regularly. What do they say? Was mom repeating herself when speaking ? Is she constantly writing things down or taking notes? …forgetting that she just asked you that same question, or wrote something down… Did mom have the ability to analyze and make decisions? Was she confused, dis-oriented as to time or place? Did she have the ability to function on her own? Increased dependency on others? What do the healthcare workers think about mom’s dementia and her ability or inability to sign a will?
5. When was the probate opened? You only have three months to object to a Florida will after you have received “formal notice.” If you don’t act within the correct time frame, you can’t later try to over turn the will based on dementia. Don’t delay or ignore. In probate administration there are no statutes of limitations in terms of years: it’s days or months. If you are getting court or official documents, don’t ignore them. Get serious and get an attorney or get out .