Scenario: Help!! My dad who has dementia disinherited my mother (his wife of 60 years)! What can be done??

Losing a loved one is difficult, and discovering that your father, who had dementia, created a second will cutting off your mother of 60 years adds to the pain. Whether you can fight this depends on several factors, including his mental capacity and the circumstances under which the will was made.

Mental (Testamentary) Capacity

For a will to be valid, the person creating it must have testamentary capacity—understanding their assets, their heirs, and the effect of the will. A diagnosis of Dementia alone does not automatically invalidate a will, but it raises questions about whether the testator (the person making the will) was mentally competent when the second will was made. Medical records, witness testimony, and evidence of his behavior during that time can provide critical insights.

Undue Influence

If undue influence is suspected, this could also make the will invalid. Pressure or manipulation by someone who stood to benefit, particularly if they helped facilitate the new will or maintained a confidential and close relationship with the testator, is a common basis for challenging a will. Creating a will online without legal oversight can make undue influence easier to exert.

Elective Share

Additionally, a surviving spouse may have legal protections, such as claiming what in New Jersey is known as an elective share of the estate or retaining homestead rights, even if the will disinherits the spouse. These rights vary by state but often provide a portion of the estate to the spouse regardless of the will's terms. Stated another way, in New Jersey, you can not disinherit your spouse completely.

Preserving Family Connections

To address these issues, it is advisable to consult an experienced estate attorney who can help evaluate the will's validity and the surviving spouse's legal options. Whether through a formal will contest or a mediated resolution, you can work toward a fair outcome while preserving family connections as much as possible. In most cases, the preservation of familiar connections can be a very important factor that needs to be taken into account.Top of Form

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As always, navigating legal matters can be complex and requires the guidance of competent legal counsel to protect your rights and interests. Don't leave important matters to chance—retain reliable legal counsel to guide you every step of the way!