Probate Attorney Explains How to Prove Lack of Mental Capacity

One of the basic tenets of contract law is whether one has the capacity to enter into a legally binding agreement. Although a will is not a contract, per se, a seasoned probate attorney can describe the possible implications of failing to ensure that one has the mental capacity to create such an important legal document.

What Is Mental Capacity?

Considered within a general legal context, mental capacity is the standard measure of one’s ability to understand what’s happening around them and make rational decisions based on that information. However, that standard is somewhat higher under Nevada law than is necessary to undertake legal activities like drafting a will.

A person’s mental capacity can be affected by age, illness, or injury. However, the timing and extent of mental diminishment must meet certain legal standards if it will be used to impact legal status and decisions.

Mental Capacity vs Testamentary Capacity

In a clinical setting, a guideline called the Mental Capacity Assessment (MCA) is used to gauge one’s soundness for self-determination and decison-making abilities.

The person being evaluated is assessed on their capacity for:

• Understanding information that is presented to them

• Retaining the information long enough to make a decision

• Using or evaluating that information as part of a decision-making process

• Clearly and decisively communicating their intentions regarding the information verbally, in writing, or by another means of communication

Within the context of drafting a last will and testament, the Nevada Supreme Court has determined that testamentary capacity needn’t necessarily meet the same standard. Rather, it is up to the testator or their estate planning attorney in Las Vegas to prove that the person is capable of understanding:

• What property and other assets they own

• How they want them disposed of after their death

Nevada probate courts and estate planning lawyers in Las Vegas also ask that the person has an understanding of “who are the natural objects of his or her bounty”.

In other words, what does the testator have, who are their heirs, and how are the assets to be divided among them.

Legal Use Cases for Determining Testamentary Capacity

There are usually two basic scenarios regarding wills and someone’s mental capacity or lack thereof. One is when a will is being contested by a probate lawyer on behalf of a client, such as when someone is disinherited or disagrees with the terms of the will. Another is when a will is drafted under suspicious circumstances and the testator’s mental capacity is called into question.

Rather than basing such a momentous decision solely on the opinion of well-meaning family members or an estate planning lawyer in Las Vegas, probate judges and legal representatives defer to assessments and evaluations by medical and mental health professionals.

One finding that might surprise the non-lawyer is what does or does not constitute a lack of mental capacity. For example, someone can be diagnosed with a progressive cognitive condition like Alzheimer’s or dementia and still be considered mentally competent to draft a will. They need only make such decisions while they are still lucid and rational long enough to make their intentions clear.

Even someone who is under the protection of a guardianship in Las Vegas can be deemed legally competent enough to formalize their intent regarding their last will and testament, so long as they meet the legal standard for testamentary capacity.

Elements of Proving Testamentary Capacity in Nevada Probate

When trying to prove a lack of mental capacity, a probate attorney in Las Vegas will attempt to present evidence and testimony based on the three critical elements of testamentary capacity.

1. The Testator Must Understand the Act of Drafting a Will and its Implications

All wills must meet certain basic legal requirements. For example, a bequest cannot be conditional. Any obligations, such as completing college, would be outlined under the terms of a trust.

Wills cannot be used to compel someone to act illegally or in a manner that is against their interests or inclinations, such as attaching a stipulation for marriage to a bequest. The last will and testament must also be in a written or digital format and witnessed at signing.

In addition to meeting the legal standards, the document should state clearly that it is a last will and testament, that it was created with intent, and that the terms will only be enacted after the death of the testator.

2. The Testator Must Have a Full Understanding of Their Assets

Testators who are unable to manage their own finances, lack understanding of the disposition of their assets, or fail to comprehend facts when explained to them are generally considered to lack the mental capacity to oversee their disposal. In such cases, probate may step in to distribute property.

3. The Testator Must Understand the Relationship Between Themselves and Their Beneficiaries

This element is meant to prevent someone from taking advantage of a person who is in cognitive decline. The testator should be able to recognize relatives and distinguish them from those who have no legal claim to their assets.

The Process for Proving Lack of Mental Capacity

If a lack of testamentary capacity is suspected, there is a multi-step process for proving your case.

1. File a petition in the testator’s county of residence

2. Provide notice of legal action to the testator and their heirs

3. Furnish documentation from a qualified medical professional detailing the lack of mental capacity

At the hearing, the judge will review all evidence provided. Witnesses and other testimony can provide further context and proof. The judge will take everything into consideration. If it is determined that the testator lacks the mental capacity to draft a last will and testament, a guardian will be appointed by the court to act on the testator’s behalf.

Such matters can be brought to the attention of an attorney or the court by a family member, care provider, or another individual who is close enough to the situation to become concerned about the testator’s well-being and mental state.

The Role of a Probate Attorney

Even a relatively simple will is a binding legal document that should not be taken lightly. Whether you’re trying to protect your own autonomy or you’re concerned that someone close to you is being taken advantage of, a probate attorney can provide advice and legal advocacy.