Q.  My husband and I would like to make wills, but I am concerned because he has been recently diagnosed with early-stage dementia. Legally, can he still make a will?

A.  It depends, but very often the answer would be yes. Under the law, he must have what is called “testamentary capacity”. This means that at the time he signs a will he must understand what he is signing and the implications of making a will. Simply because he has been diagnosed with a form of mental illness or disease process, does not necessarily mean he lacks legal capacity to make a will.

Generally speaking, he would be considered mentally competent to make a will if: (1) he is able to understand that he is making a will, (2) he understands the nature and extent of his property, which means he understands what he owns, and (3) he knows and understands who his family relations are.  Further, he would only need to meet these requirements at the time he signs his will.  Some persons are more lucid at certain times during the day, and he should sign his will during those lucid periods.

A related question is whether he would also have sufficient capacity to make a trust. The question here is whether signing a trust requires a greater degree of capacity than signing a will, as trust documents are usually more complex.

A few years ago a California court addressed this question in a case called Andersen vs Hunt. In that case, a father made an amendment to his original trust, created years earlier, to leave a 60% portion of his estate to his longtime romantic partner, thereby reducing the share going to his three children. When the father died, his children contested the trust on the ground that their father lacked sufficient capacity, urging that the act of creating a trust required a greater degree of capacity than signing a will.  On appeal, the court upheld the trust amendments, concluding that they were rather simple in nature and therefore the law concerning the capacity to make a will should control. The lessons: (1) if a trust document were drafted to be relatively simple and straightforward, then the requirement of capacity would likely be construed under the more relaxed standard applicable to the making of wills; (2) alternatively, for a person whose capacity were questionable, perhaps a will would be the better choice.

If there is concern that capacity may later be questioned, it would be helpful to have evidence of your husband’s capacity at the time he signs the will or simple trust, such as a current letter from his physician attesting to his capacity and/or a video-taped pre-signing interview conducted by the attorney preparing the will.

If your husband has sufficient capacity to meet the relaxed standards for making a will, or even a simple trust, I would urge him to do so as soon as possible. Further, if he does not plan to disinherit any children, or to treat them differently in the overall division, the chance of a later contest is much reduced.