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If someone updates their will after beginning to show signs of memory loss or early cognitive decline, how does the court determine whether that person had the mental capacity to make those changes? Would the updated will still be considered valid, or could it be challenged later based on questions about competency?

Even if the Will was a downloaded one, it would had to have been finalized in front of a notary with 2 non-family witnesses. So, the most recent version of their Will should meet the legally recognized standard, to start with.

If the person who recreated or amended their Will didn't have a diagnosis of incapacity, then it will be the burden of the contestors to prove the latest version was made when the principal didn't meet the standard for legal capacity, or was coerced. Not sure what it would take to do this, and it probably varies by state.
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Reply to Geaton777
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ANY will may be challenged. All you need to do is pay an attorney. And if you go to court presenting good EVIDENCE that there was not sufficient "legal capacity" to do legal documents, then a case of challenge may easily win.

It is up to an attorney to work with client you has some memory loss, to discuss with the diagnosing doctor, to ask to exam if necessary and to do the legal work to fully understand the client's capacity to change wills or trusts. This footwork is costly, but it will help to have it present in the case of suspicion that will or trust will be challenged in court.

Answer basically is that yes, there needs to be proof of capacity presented to attorney in the case of memory loss, before any changes are done by an elder who wishes to change his/her documents for POA, will, trust and etc.
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Reply to AlvaDeer
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prettyflowers19 Oct 23, 2025
That makes a lot of sense, capacity really isn’t so black and white. Someone might be forgetful day-to-day but still legally competent when signing documents. I guess it really depends on timing and medical documentation.

I’m in Southern California, and a friend’s family is going through something similar so I was just wondering about this sort of situation. They're working with some local estate litigation firm, Albertson & Davidson, and I think that is definitely giving them some peace of mind (especially since they reached out before things escalated).
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IMO, the person would have to have a formal diagnoses of decline to be prevented from updating a Will. The lawyer updating it should look for signs of Dementia before rewriting the Will. It would be very hard, I think, to claim cognitive decline with that diagnoses not being done before the update.
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Reply to JoAnn29
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Based on my experience as Executor 3 times, most probate attorneys do NOT do litigation at all. Its speciality practice work. If your friends have paid a retainer to a law firm that does litigation, I hope the estate has serious assets to make it worthwhile. That it’s not about “mom loved you best” feelings. And if your friends do not themselves live in the County where the deceased lived (& where will entered) and their attorneys as well, that from the start imo that will put them off to a bad start.

I wouldn’t be at all surprised if the judge places it to be a Dependent Administration with a court appointed Executor. Not whomever named in the will or the codicil being contested, Dependent will mean that all actions have to have court approval so this will be a slog.
Gawd, I hope for your friends sake & sanity, there is crap ton of assets, to make this worthwhile.
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Reply to igloo572
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I think you question would best be posed to a lawyer.
I'm no lawyer, but I think the court has no way of knowing the competency of the decedent, and would only be brought up if someone were to challenge the will.
It could be challenged by an interested party (a legal heir) based on questions about competency, but the plaintiff will have the burden of proving incompetency.

It seems to me the changing of the will must be done with a lawyer. Or should be, anyway. And that person should ensure the person changing their will is of sound mind and is not doing so under duress.
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Reply to CaringWifeAZ
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Look up "Undue Influence"
If you have someone trying to persuade the memory loss person into changing their will it could be "undue Influence".
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Reply to fedupforever
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TouchMatters Oct 30, 2025
Thank you. Never heard of this. Good information.
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This is a legal question, as each state law differs as to the definition of mental capacity. In my state, the elder only needs to know who his children are and have an understanding of his assets. I highly recommend finding an elder law atty as opposed to drafting a will online. The atty and witness can then attest to mental capacity and greatly reduces the likelihood (and success) of being contested.
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Reply to JustVee
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Always consult an attorney.
Consult medical provider.
I believe the court will require- and depend on for their legal opinions - medical provider documentation regarding cognitive functioning / diagnosis.

Gena / Touch Matters
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Reply to TouchMatters
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I live in Texas. My mother has Alzheimer's. Her attorney advised me that memory loss does not necessarily keep them from making decisions, but it requires extra effort and documentation. The attorney who made changes to the will should have taken steps to ensure that the person he was working for was still able to make decisions like this. He should be where only the attorney and the client are present so he can ask questions and try to ascertain that they understand and did not make the decision under duress. If not, IMHO, the attorney will have to answer for his decision to move forward and, yes, the will could be invalidated.
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Reply to Lovemom1941
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prettyflowers19: Retain an attorney.
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