Wills and Disabilities: What to Know
Can you make a valid will if you have a disability? In general, the answer is yes. Having a medically documented disability — including a mental disability — will not typically impact a person’s ability to make a valid will. However, when a person has been adjudicated disabled such that they are not of sound mind or memory, then the disability can impact the ability to make a will. Our Oak Park estate planning lawyers can say more.
Requirements for a Valid Will
The specific requirements in the Illinois Probate Act for a person to be eligible to make a valid will are minimal and straightforward:
“Every person who has attained the age of 18 years and is of sound mind and memory has the power to bequeath by will the real and personal estate which he has at the time of his death.”
In other words, to make a valid will, you must: 1) be at least 18 years old and 2) be of sound mind and memory. This sounds relatively simple, but it can sometimes become complicated to determine whether a person is “of sound mind and memory.” How do courts determine whether a person is “of sound mind and memory”? There is no specific definition of the term “sound mind and memory” in the Illinois Probate Act, but the statute does provide helpful and clarifying information.
How Being Disabled Can Impact “Sound Mind and Memory”
The Illinois Probate Act says: “[T]here is a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled . . . and either 1) a plenary guardian has been appointed for the testator . . . or 2) a limited guardian has been appointed for the testator . . . and the court has found that the testator lacks testamentary capacity.”
What does that mean? The court will presume that a will or a codicil (an addition or change to a will) is invalid in certain situations where the person making the will or amending it through a codicil has been adjudicated disabled, and the person lacks testamentary capacity (or the ability to make a will). Suspicions of a mental disability or mental incapacity are not usually enough to invalidate a will. And even if a person has made a will after being adjudicated disabled, it is possible to present evidence to rebut — that is, to push back against — the presumption that the will or codicil is invalid.
Contact an Oak Park Estate Planning Attorney for Assistance
Many different questions can arise when there is an issue concerning a person’s mental health or their intellectual ability to make important decisions.
Whether you need help making a valid will and have worries about how your mental health could impact your ability to make a will, or you have concerns about certain decisions a loved one made after being diagnosed with a disability or being adjudicated incompetent by a court, one of our experienced Oak Park estate planning lawyers can provide you with more information and can answer your questions for you. Contact the Emerson Law Firm today to learn more about how we can assist you.
See Related Blog Posts:
Am I Too Late to Make a Will?
Estate Planning Checklist
Requirements for a Valid Will
The specific requirements in the Illinois Probate Act for a person to be eligible to make a valid will are minimal and straightforward:
“Every person who has attained the age of 18 years and is of sound mind and memory has the power to bequeath by will the real and personal estate which he has at the time of his death.”
In other words, to make a valid will, you must: 1) be at least 18 years old and 2) be of sound mind and memory. This sounds relatively simple, but it can sometimes become complicated to determine whether a person is “of sound mind and memory.” How do courts determine whether a person is “of sound mind and memory”? There is no specific definition of the term “sound mind and memory” in the Illinois Probate Act, but the statute does provide helpful and clarifying information.
How Being Disabled Can Impact “Sound Mind and Memory”
The Illinois Probate Act says: “[T]here is a rebuttable presumption that a will or codicil is void if it was executed or modified after the testator is adjudicated disabled . . . and either 1) a plenary guardian has been appointed for the testator . . . or 2) a limited guardian has been appointed for the testator . . . and the court has found that the testator lacks testamentary capacity.”
What does that mean? The court will presume that a will or a codicil (an addition or change to a will) is invalid in certain situations where the person making the will or amending it through a codicil has been adjudicated disabled, and the person lacks testamentary capacity (or the ability to make a will). Suspicions of a mental disability or mental incapacity are not usually enough to invalidate a will. And even if a person has made a will after being adjudicated disabled, it is possible to present evidence to rebut — that is, to push back against — the presumption that the will or codicil is invalid.
Contact an Oak Park Estate Planning Attorney for Assistance
Many different questions can arise when there is an issue concerning a person’s mental health or their intellectual ability to make important decisions.
Whether you need help making a valid will and have worries about how your mental health could impact your ability to make a will, or you have concerns about certain decisions a loved one made after being diagnosed with a disability or being adjudicated incompetent by a court, one of our experienced Oak Park estate planning lawyers can provide you with more information and can answer your questions for you. Contact the Emerson Law Firm today to learn more about how we can assist you.
See Related Blog Posts:
Am I Too Late to Make a Will?
Estate Planning Checklist
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