When can someone lose the ability to draft a will?

Someone who turns 18 can create an estate plan in New York. Adults at most points throughout their lives retain that legal ability. They can draft documents if they have not done so already or revise older documents.

Eventually, however, people may reach a point where their family members or the beneficiaries that they list in their documents question whether they are still capable of drafting legally-binding documents. New York state law requires that people be of sound mind and memory to put together wills and similar testamentary documents.

At what point can someone who previously had such authority lose the testamentary capacity to draft or update wills?

When they struggle with cognition or memory

The standard for testamentary capacity in New York is relatively straightforward. A testator needs to understand the documents they intend to sign and be aware of their personal circumstances. Generally, they need to have the ability to recall the names of their beneficiaries and family members and recognize the current status of their relationship with different people.

They also need to be able to remember what assets they own and understand how bequeathing them to different parties could affect their family members. Someone loses their testamentary capacity when health challenges impair their ability to understand the documents or recall their personal circumstances.

Family members raising a claim that someone lacked capacity when drafting their documents have to meet a burden is proof. Medical records showing specific symptoms or a concerning diagnosis can help. However, a diagnosis of Alzheimer’s disease or a similar condition won’t automatically mean that someone lacks testamentary capacity. Such conditions are typically progressive and start with mild symptoms. Individuals in the earliest stages of decline often still have the necessary capacity to put together documents. It is only when they become incapable of understanding their situation or recalling the details of their situation that they have likely lost their testamentary capacity.

Those attempting to contest a will based on allegations of a lack of capacity often need more than just a diagnosis. They need statements from family members who saw someone’s confusion and inability to make decisions or testimony from care workers who had to help someone overcome the challenges that arose because of their cognitive decline or memory loss.

Those who worry that they will eventually become incapable of drafting or revising an estate plan may want to manage their wills and other documents as soon as possible. They can then adjust their documents as time passes to more accurately reflect their current holdings and family circumstances, for as long as they have the capacity to do so.