Deciding to create an estate plan is a wise choice. However, if you are older, you might find yourself facing a challenge you did not anticipate. You may need to show that you are mentally competent.
The good news is that the law presumes you are legally competent to execute an estate plan. The person challenging your competence has the burden of proving you are incompetent and did not have the capacity at the time you created your estate plan.
While they will need to prove your case with evidence, there are some steps you can take to provide your own evidence if your competence is challenged.
Have a doctor’s letter ready
Obtain a letter from your doctor at or near the time you sign and execute your estate planning documents. This can be your primary care physician or someone who specializes in mental competence, such as a neurologist.
Generally, the letter should state that you have been evaluated for mental competence and in the doctor’s opinion you are mentally competent.
Document the reasons for your choices
Write down your specific reasons for the decisions you make regarding your estate plan. This is especially important if you are planning to disinherit someone or make an unequal distribution. It is harder for someone to prove incompetence when there is evidence that you are aware of your choices.
It is best to not place this writing in the will itself, to avoid potential complications. Placing the writing with your will is a better idea.
Tell a few trusted friends or advisors about these decisions. This can serve as additional evidence along with your writing that you were competent when you executed your estate plan.
Competence matters at the time of signing
A common assumption is that certain conditions, such as dementia, automatically make you mentally incompetent. This is not true. You can be diagnosed with dementia and still be mentally competent to create an estate plan if you were mentally competent at the time of signing.
Hopefully, your mental competence will not be challenged. But if you have taken these steps, you can have peace of mind that any challenge will have a low chance of success.