What you need to know to challenge capacity.
We get several calls a week from potential clients claiming their loved one did not have the capacity to execute, or change, certain documents. Capacity means different things in different professions. If you think you may need to challenge capacity, here are some things you should know.
1. Legal capacity is not the same as a medical diagnosis
A doctor may say your mother had dementia. A nurse may chart that your father was "confused." Neither statement, on its own, means the person lacked legal capacity to sign a will, trust, deed or power of attorney.
Courts apply their own tests, and the test depends on the document:
• Testamentary capacity (wills and many trusts). Generally, the person must have understood that they were making a will, the nature and extent of their property, who their natural heirs were, and how those pieces fit together into a plan. This is one of the lowest thresholds in the law.
• Contractual capacity (deeds, contracts, some trust amendments, powers of attorney). Often a higher standard: the person must have understood the nature and consequences of the specific transaction.
• Other documents. Gifts, beneficiary designations and marriages can each carry their own standard, depending on your state.
Two more rules surprise many families. First, the law presumes an adult had capacity; the person challenging the document must prove otherwise. Second, capacity is measured at the moment of signing. Someone with dementia can still have a "lucid interval" and sign a valid document on a good day.
Finally, lack of capacity is different from undue influence, where a person had capacity but someone overpowered their free will. The two claims are often brought together, but they require different proof.
2. Missing deadlines can end your case
Capacity challenges are governed by strict filing deadlines. Depending on your state and the document, you may have only a few months after a will is admitted to probate, or after you receive notice of a trust, to file. Some deadlines are measured in weeks. Once the deadline passes, the court may never hear your claim, no matter how strong it is.
You also need standing, meaning a legal right to bring the challenge. Usually that means you would receive more if the document were thrown out, for example as a beneficiary under an earlier will or as an heir if there were no will at all.
3. Challenging capacity means filing a lawsuit
There is no informal way to undo a will or trust. A capacity challenge is litigation: a formal contest or petition filed in court, with pleadings, hearings, deadlines and, if it does not settle, a trial.
A few things to understand before you file:
• You carry the burden of proof. Because capacity is presumed, you must produce evidence that the person lacked capacity when they signed.
• Your relationships may change. These cases usually pit family members against each other. Be prepared for that strain.
• Check for a no-contest clause. Many wills and trusts say that anyone who challenges the document loses whatever they would have received under it. Whether that clause will be enforced varies by state and by the facts, so get advice before you file.
• The other side will defend the document. Expect the drafting attorney, the witnesses and the notary to testify that the person seemed perfectly competent.
4. Medical records are the foundation of the case
The most important evidence in a capacity case is usually the medical record: doctor's notes, hospital charts, medication lists, cognitive screening results (such as the MMSE or MoCA), nursing home records, home health notes and pharmacy records. Records from the months before and after the signing date matter most.
Getting those records is not always simple. Privacy laws such as HIPAA restrict who can obtain them after a person dies. Typically, the personal representative of the estate can request them, and that person is often the very person you are challenging. If they will not cooperate, your attorney can obtain the records through a subpoena or court order once a case is filed.
5. You will likely need to hire an expert
You cannot simply tell the court that your loved one did not have capacity. Your observations as a family member matter, but they are rarely enough on their own, especially when the drafting attorney testifies that the person was sharp and engaged.
Most capacity cases require a qualified expert, often a geriatric psychiatrist, neurologist or neuropsychologist. Because the person has usually passed away, the expert performs a retrospective capacity assessment. They review the medical records, medications, test scores, witness testimony and other evidence, then give an opinion on whether the person could meet the legal standard on the date the document was signed.
6. Discovery: building the evidence
Once a case is filed, each side can use formal tools, called discovery, to gather information from the other side and from third parties:
• Interrogatories: written questions the other party must answer under oath.
• Requests for production: demands for documents, such as emails, texts, bank records, prior wills and the drafting attorney's file.
• Requests for admission: written statements the other side must admit or deny, which can narrow the issues for trial.
• Subpoenas: used to obtain records from doctors, hospitals, banks and other non-parties.
• Depositions: sworn, recorded interviews of key witnesses, including the drafting attorney, the witnesses to the signing, caregivers and treating physicians.
What it costs
Capacity litigation is expensive, and you should go in with realistic expectations. The main costs include:
• Attorney's fees: for pleadings, discovery, depositions, motions, mediation and trial.
• Expert fees: for record review, written reports, deposition testimony and trial testimony. Qualified medical experts typically charge by the hour, and their fees can add up quickly.
• Litigation costs: filing fees, court reporters, deposition transcripts, subpoena and records-copying charges.
• Time: many cases take a year or more to resolve.
In many cases, each side pays its own attorney's fees, although some states allow a court to shift fees in certain circumstances. Also keep in mind that the person defending the document may be paying their legal fees out of the estate, which can shrink what everyone ultimately receives. Weigh the amount in dispute against the likely cost before you commit.
Before you call
If you believe a loved one lacked capacity when they signed or changed a document, gather what you can before your first consultation:
• A copy of the document you want to challenge, and any earlier versions
• The date it was signed and the name of the person who prepared it
• Names of the person's doctors, hospitals and care facilities
• Any notice you received from the court, executor or trustee, and the date you received it
• Names of people who saw the person regularly around the signing date
Then act promptly. Deadlines in these cases are short, and an early review of the facts and medical records is the best way to know whether you have a case worth bringing.
Disclaimer: The information in this blog post is for general informational purposes only and is not legal advice. Laws vary by state and change over time, and every situation depends on its own facts. Reading this post or contacting our firm does not create an attorney-client relationship. Please do not send confidential information until an attorney-client relationship has been established. For advice about your specific situation, consult a licensed attorney in your state.