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Can parents write me out of will and I challenge incapacity

In our last video, I discussed what happens when dear old mom or dad leaves you out of their last will. People usually will challenge last wills and trusts when they are left out of the document and not receiving any money or assets, in other words, their inheritance, from their loved one.

We explained that, in certain circumstances, there might be three ways to challenge an estate, and those are undue influence, being an omitted child, and incapacity, which is what we're gonna talk about today. Lack of capacity is a big one. For this to work, a child must prove that their parents lacked capacity to sign their last will or their trust document.

It should be noted that when a child is challenging a will or a trust based on incapacity, the burden of proof is on the child challenging the document. 

Surprisingly, this happens on a regular basis, and the scenario we usually see play out is when a parent or parents do a great job of their estate planning and they execute all the necessary documents at the time of their lives when they have full capacity to know exactly what they're doing. You might ask then, "Why is that a problem, and what does this have to do with incapacity?" This is usually how the story begins.

Remember, this entire situation comes up when a child is left out of their parent's estate. And I have to tell you that we received quite a few direct messages and some comments from you guys out there who believe that they are absolutely entitled to their parent's estate. Let's do a quick little poll here. How many of you think, as a child, you are absolutely entitled to your parent's estate? Comment below, yes or no. I'm interested to see what you guys think again.

Now, back to incapacity. I think the statistic is something like over 50% of people over the age of 65, either have or start to have diminished capacity. Due to the incapacity, they can start to become reclusive, the kids quit visiting as much, and the parents generally become easily agitated as a result of diminishing capacity. And right here is where we see the problems start to happen, or where we can look back and identify as a turning point in the parent's life.

The way the story usually plays out is that, as the parent slowly loses capacity, they start to make substantial changes to their estate plan, usually without letting anybody know. Again, it should be noted that even though a person might start to become forgetful or not grasp things as quickly as before, if they know what they are doing and absolutely understand what their last will states, then it is going to be hard to prove incapacity.

So, what does incapacity actually mean? Right? That's what this video's about. Unfortunately, it kind of depends on the circumstances, such as committing a crime versus signing a last will. There's actually different definitions. But in the context of estate planning, incapacity could be insanity, a brain injury, or senility.

For each of these, the person trying to prove incapacity is going to need medical documentation substantiating their claim of incapacity. I hear some of you already are wondering about someone who is under an adult guardianship, and there actually are cases out there where a court of law has determined that someone who requires a legal guardianship can, at the same time, that same court can still find that they have the capacity to sign a last will.

Just like I said earlier, if a person knows what they are doing and completely understands the situation, then it's going to be really hard to challenge their estate plan, and the courts around the country seem to agree with this. In fact, in Oklahoma, there's actually a state law, a statute, that if a person is under guardianship and wants to execute a last will, then it needs to be signed in front of the judge to make it valid. And of course, a judge is gonna have to determine whether they have capacity.

So if your parent lacked capacity and there is substantial medical evidence to prove incapacity, then it's going to be easier to challenge any estate plan executed during their time of incapacity. However, without medical evidence, it is going to be hard to prove and you might be left out of dear old mom's estate. She may just not have wanted to give it to you. Remember that your parent's money is their money. No matter how much you think you deserve their money, their money is not your money.

However, there are situations like we talked about today, lack of capacity and undue influence, that can and probably should be used to challenge an estate plan where those circumstances existed. In our next video, we will discuss undue influence and what it actually means.

If you missed our last videos on getting left out of your parent's estate and videos on our estate planning questionnaire, then please go back and watch them. And click on the link below to get a copy of the estate planning questionnaire that I use, that we use in our law firm every single day to get you started in the right direction.

And, to up your estate planning game even more, please check out this video up here and this video up here. If you liked this video, then hit the like button and be sure to smash that subscribe button and share it with your friends. I would really appreciate it and you don't know how much that means to us. Have a great day and, as always, have an awesome week. Thanks for watching.

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About the author 

Cortes Law Firm

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