By attorney John Pankauski, Special to THELAW.TV
Did mom cut you out of her will or estate -- or leave you less than you expected?
Consider this: Mom dies and you read in mom's will that a neighbor of mom's, who lives in the same condo complex, gets one half of the estate. You only get one-quarter and your only brother gets one-quarter! You have never even met "the neighbor" -- and the neighbor is getting more than mom's only children!
So let's cut to the chase: You are wondering, did mom not have the right mental capacity to make her last will, to understand what she was doing? Maybe mom was aging or slowing down. Maybe she needed more help as the years went on. Americans have long life expectancies. While our bodies can endure, our minds often cannot. There's a greater likelihood than ever before that we will be incapacitated before we die. Everyone knows a friend or relative who was stricken by dementia or Alzheimer's.
So you ask yourself, rightfully so: Was mom diagnosed with dementia? Did dementia keep mom from knowing what she was doing? If dementia prevented mom from understanding what she was doing when she signed the will, that will may not be valid. Every week across the country in probate circles, if not daily, beneficiaries of estates and trusts ponder these questions. Mom dies. You get a copy of the will and are shocked at what it says. How could this happen? What happened?
You may be able to object to the will based on mom's dementia. Here are five important things that you need answers to:
1) Who wrote the will? Was mom's will prepared by her long time Florida estate planning attorney who knew mom well? And who knew her mental state or mental health history? Or was it purchased on the Internet by downloading a form? Was the form purchased at an office supply store? Was it printed on the neighbor's computer? Maybe the neighbor wrote it. Another question you want answered: If there was an attorney who prepared the will, how long did mom know that attorney (five minutes or five years)? Who hired that attorney, who paid that attorney, and who kept the original will? Did mom meet the attorney or did the neighbor find the attorney? Remember, those who suffer from dementia are more susceptible to undue influence.
2) Was mom taking meds? If mom was taking medication, you need to know what meds mom was on, if and when she took them on the day she signed the will, and how the possible side effects were, or were not, affecting her. There are some wonderful drugs that assist aging parents and loved ones who are stricken with dementia. Namenda is a drug by Forest Labs that my mom took during the last year of her life. My mom suffered from dementia and, after she was diagnosed, I noticed a great improvement. Although not all patients who suffer from dementia are diagnosed with Alzheimer's, there is much to learn about aging. Aricept is another drug that assists those who may suffer from symptoms of dementia. You need to know what drugs mom was taking, and, perhaps more importantly, what drugs mom was NOT taking, but should have been.
3) What do the medical records say? When you are involved in probate litigation over a will, and there is a belief that mom lacked the ability to know what she signed, you need to read her medical reports and records. What do her doctors say? In the probate world, probate lawyers refer to this as whether mom lacked the requisite "testamentary capacity" to execute or sign a will. Did mom know who her family members were? Did she understand the act of signing a will? Would she be able to explain that she was giving a neighbor (someone outside the family) one half of her estate -- and giving her only daughters one-fourth each? Were neurological tests given? Are there notes in the files about dementia, confusion, or memory loss? If neurological tests or exams were not given, you need to know why. See what the medical records show. Issue subpoenas to hospitals, doctors, and other healthcare workers who treated mom. Then review the medical records with someone who understands them and knows what to look for.
4) What do the health care workers say? Mom probably had a primary care physician, or internist, perhaps a neurologist, and maybe even health care workers or aids. If mom was in an assisted living facility or a nursing home, even part-time, she may have been seen regularly by nurses or nurses assistants. Mom may even had her own staff that came in everyday or regularly. What do they say? Was mom repeating herself when speaking? Was she constantly writing things down or taking notes? Did mom have the ability to analyze and make decisions? Was she confused and disoriented as to time or place? Did she have the ability to function on her own? Increased dependency on others? What do the healthcare workers think about mom's dementia and her ability or inability to sign a will?
5) When was the probate opened? You only have three months to object to a Florida will after you receive "formal notice." If you don't act within the correct time frame, you can't later try to over turn the will based on dementia. Don't delay or ignore. In probate administration, there are no statutes of limitations in terms of years: it's days or months. If you are getting court or official documents, don't ignore them. Get serious and get an attorney or get out.
In Florida, we see more than our share of the dementia. Florida has a large retirement and elderly population. Our hospitals and doctors are making great strides in assisting our aging population with mental illness. But dementia is widespread and it may be difficult to spot if not dealt with in a timely fashion. We always don't know -- it’s not always clear -- when someone loses the ability to fully understand what they are doing, even when they look and sound great. Florida has strict laws for those who take advantage of the elderly. There are both criminal and civil penalties. If you are a beneficiary of a trust or will that you think is not valid because of a loved one's dementia, you may only have as few as three months to object to a will or six months to object to the trust.
John Pankauski is a West Palm Beach, Fla., probate and trust litigation attorney.