Watching a loved one’s memory fade can leave you wondering whether they can still sign a valid will. Delaware law governs their ability to make that decision, the court options available when planning is no longer possible and the steps families can take now.
Assessing capacity and undue influence
A dementia diagnosis alone does not prevent someone from making a valid will in Delaware. At the time of signing, they must be able to exercise thought, reflection and judgment and understand what they are doing and how they are distributing their property. They may meet that standard during a lucid interval, or period of clarity, even if their symptoms are worse on other days.
Someone challenging the will generally must prove a lack of capacity or undue influence, meaning pressure that overrides the signer’s free choice. The burden shifts if clear and convincing evidence shows that the signer had weakened intellect and someone in a confidential relationship with them drafted the will and received a substantial benefit. Those defending the will must then prove capacity and the absence of undue influence.
Seeking guardianship when planning comes too late
If your loved one no longer has the capacity to sign a will or a power of attorney, your family may need to petition the Delaware Court of Chancery for guardianship. The petition must include a physician’s affidavit, and the court generally appoints an attorney ad litem to represent your loved one and investigate their circumstances.
Guardianship limits your loved one’s right to make their own decisions because a judge chooses who manages their affairs. The process can take weeks or months and involve attorney fees. A guardian of property must also file an accounting after the first year and later as the court requires.
Protecting the will while capacity remains
A physician’s capacity evaluation near the signing date can help document your loved one’s mental state if the will is later challenged. If someone alleges undue influence, an attorney who supervises the signing and two witnesses who receive nothing under the will can provide independent accounts of what happened.
Your loved one and both witnesses can also sign a self-proving affidavit before a notary, which generally allows the will to enter probate without the witnesses having to testify.