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Delaying estate planning raises risk of testamentary incapacity

Challenging a will is usually difficult. A person who decides to legally dispute a will in Oklahoma must prove that the testator was unduly influenced or was not of sound mind at the time the will was signed. This latter point is often misunderstood. While soundness of mind is essential for estate planning, it is not as limiting as it seems.

When a person is signing a will, advanced health care directive or do-not-resuscitate order, the law requires that he or she be aware of the gravity of the document. In fact, in most states, testamentary capacity is decided by determining a person's abilities in four areas. Those signing a will must understand what they own, that they are planning for the distribution of their belongings after death, to whom they are distributing their property, and the purpose of the documents they are signing.

Even a person with Alzheimer's may be judged capable of signing such documents if he or she has enough moments of lucidity to comprehend and agree to the terms. Families of patients with dementia may know the best time of day for the patient and plan to meet with attorney at that time, with alternate appointments scheduled in case the patient is not having a good day. It is recommended that those with questionable testamentary capacity have several impartial witnesses to the signing of their estate plans to preempt challenges.

To avoid any question about their mental capacity to make end-of-life decisions, many choose to do their estate planning well in advance. While it is likely that those documents will be altered and amended as lives and families change, having one's will, trust, powers of attorney and advanced care directives in place may bring peace of mind as one grows older. Speaking with an attorney about the options available for one's estate plan will provide answers to anyone in Oklahoma who is considering taking the first steps.

Source:, "Are you able to sign your estate planning documents?", Matthew M. Wallace, May 19, 2017

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