Mental Competence

When an elderly person is doing a will, it is very important to consider the issues of mental competency and duress. An elderly person’s will is more likely to be contested based on alleged incompetency or based on a suggestion that the testator (the person writing the will) was a victim of the undue influence of a spouse, friend, or family member. 

There are a few precautions that can be taken to minimize the chances of a will being challenged. One precaution is to speak with the lawyer and meet with the lawyer by yourself, so that your conversation is confidential and not overheard by children or even a spouse. It is not uncommon for an elderly person to attend at a lawyer’s office in the presence of his or her children to do a will. This can potentially lead to problems if the lawyer has to testify in court about the competency of the testator or has to attempt to refute an allegation that the will was made under duress. 

Children sometimes wish to be helpful to an elderly parent and will answer questions for the parent and make suggestions on the parent’s behalf. This may create the impression that the child is directing the parent and that the parent either lacks the mental wherewithal to resist the child or is perhaps a victim of elder abuse and going along with the child despite the parent’s own misgivings. 

My practice is to have a private conversation with the elderly person to determine that the person’s wishes are in fact being reflected in the will. I also invite the testator to contact me later in case he or she wishes to make changes to the will Calgary or supporting documents, such as the power of attorney or personal directive.

You should be frank with the lawyer during your private meeting and indicate if you have any concerns with the will or with your family members. The lawyer may even ask you questions that are meant to determine your level of mental awareness. These questions will likely be simple and conversational questions, but will be used by the lawyer to figure out whether you are aware of what you are doing. These precautions will help ensure that your will reflects your wishes and that it won’t later be successfully contested because another family member or friend was later concerned about competence or undue influence.