A dementia diagnosis does not automatically remove testamentary capacity. Which point in time counts and which evidence is decisive where doubts exist.
Mag. Bernhard Brandauer
Attorney · BRANDAUER Rechtsanwälte, Salzburg
Inheritance matters are handled by Mag. Bernhard Brandauer together with a coordinated team. We examine the will, compulsory portion, gifts and deadlines and tell you clearly where you stand.
When doubts about a will arise after a death, the question of testamentary capacity is often in the room. Especially with a dementia illness, the question is whether the testator was still able to form an effective last will at the decisive moment.
This article explains what testamentary capacity requires, why a diagnosis alone is not enough and which evidence counts where doubts exist. It does not replace advice in an individual case but provides a basis for a first assessment.
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The answer decides which evidence matters for the question of testamentary capacity.
A diagnosis such as dementia does not remove testamentary capacity as a matter of course. What matters is the state at the time the will was drawn up. Without concrete indications of impairment, testamentary capacity is to be assumed.
Anyone who has doubts must support them with evidence.
With clear signs of confusion at the time of drawing up, testamentary capacity may be in question. Contemporary medical records and statements by persons who experienced the testator at the time are important.
The state of the evidence decides whether contesting has prospects.
Where the state fluctuates, a will may have been effectively drawn up in a lucid moment. Testamentary capacity is examined with reference to the exact time of drawing up.
Evidence that concerns precisely this time is especially important here.
A person has testamentary capacity who can recognise the meaning of a last will and form their will accordingly and freely. It is about understanding the scope and consequences of the will and deciding without impermissible influence.
This capacity is in principle presumed. Anyone who claims that the testator lacked capacity must set this out and prove it. General presumptions do not suffice; concrete indications matter.
A diagnosis such as dementia does not automatically remove testamentary capacity. What is decisive is the state precisely at the time the will was drawn up. Even with a progressing illness there can be phases in which the testator had the necessary insight.
Such lucid moments are legally significant. If a will is drawn up in a clear phase, it can be effective even where the state was impaired overall. The exact time of drawing up must therefore be established carefully.
Important means of evidence are contemporary medical records, reports and findings that describe the state around the drawing up. Added to these are statements by witnesses who experienced the testator at the time, for instance on orientation and understanding.
The burden of proof in principle lies with whoever claims the lack of testamentary capacity. Because the illness runs over time and the state can change, records with a precise date reference are especially valuable. No blanket statement about prospects of success is possible, and this assessment does not replace advice in an individual case.
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