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My father has dementia. Can he execute a will?

Dementia is a progressive disease which affects mood, behavior and memory.  There are many stages of dementia.  Just because your father has a diagnosis of dementia does not mean he cannot execute a will.  However, it is best to document your father's capacity at the time the will is executed by having your father mental capacity evaluated by a medical professional such as a geriatrician who specializes in dementia.  

In order to execute a will in California, your father needs to have the requisite legal capacity.  If he does not have the legal capacity, the will can be invalidated.  A person has the mental capacity to execute a will if the person has the capacity to understand the nature of the will and its consequences, understand their extent of their property, understand and remember their family and how the will affects those individuals.  

While this sounds like a simple concept, it can be very complex when someone has dementia.  The best practice is to have your father's capacity evaluated by a medical practitioner to determine whether he can execute a will.  This will create a record of your father's capacity in case the will is challenged or questioned later on.  The medical professional will issue a report of their findings after your father is evaluated and their report should be kept with the will.  

Generally when this issue comes up after someone has contested the will.  By having a contemporaneous capacity evaluation to confirm the person executing the will has capacity, it makes the will contest less likely to succeed.  

 

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