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A loved one has been diagnosed with a long-term degenerative disease. Can he sign a valid will?

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To sign a valid will you must have "Testamentary Capacity" In other words, you must be of "sound mind and body" when you create or change a Will and you must understand the legal effect of signing a Will. If someone can establish that you were not of sound mind and body when you made a Will, a Court may invalidate it.

Often, testamentary capacity becomes an issue when later in life, a person comes down with a neurodegenerative diseases, such as Alzheimer's. These long-term diseases gradually deteriorate the ability to be of sound mind and body, and thus call into question testamentary capacity - the ability to sign a valid Will.

Some find that those who "step into their life" at this sensitive time are the ones who they want to provide for in their Wills. So people revise their Wills to provide for the ones who, generously or not, help them when they needed it most - usually after or around the onset of the neurodegenerative disease.

Usually, a disease will not automatically invalidate late stage Will revisions. But it can be grounds for challenging whether someone had the proper testamentary capacity to execute a new Will. The onset of a degenerative disease can be a "free pass" for a "rejected" beneficiary (say, one who is receiving less assets under the new Will) to challenge the Will on the grounds of a lack of testamentary capacity.

Since degenerative diseases are directly tied to the ability to perceive and understand their surroundings, a Court will have to seriously consider the rejected beneficiary's challenge, and the effect of the disease on the execution of the new Will. At least in New Jersey, a Will is not automatically invalidated just because it was signed by someone with, or experiencing symptoms of a neurodegenerative disease.

For example, in the case of the Estate of Alfred Finocchiaro, brought by a daughter-in-law, the signer - a Mr. Finocchiaro -- began to show symptoms of Alzheimer's as early as 2005. A doctor who visited him then testified in the lawsuit that followed his death that "[he] knew his name, but he didn't know where he was being physically visited. In another visit in 2006, the doctor said that "Mr. Finocchiaro appeared cognitive. He was greeting me at the door. Smoking. Pleasant. . . . but still had no idea of who I (the doctor) was or what I had been doing for the past year."

Then, following the unsuspected death of Mr. Finocchiaro's son in early 2007, Mr. Finocchiaro signed a new Will, replacing his past Will in 2001.

At the trial, an individual living with Mr. Finocchario testified that, in 2007 (the time of the new Will), "Mr. Finocchiaro's confusion would sometimes last for days, and, conversely, there were time's when he was completely lucid for days. He was 'in and out.'" Mr. Finocchario had symptoms of Alzheimer's disease, but he was experiencing intervals of lucidity.

The trial judge concluded that "I do find that the decedent, Mr. Finocchiario, had suffered from dementia, but there is no evidence that he did not understand what his desires were in revising his Will in 2007. . . so I find that he had sufficient capacity to execute the Will."

The Appellate Court upheld the judge's decision, citing cases where it had previously found that individuals who lacked testamentary capacity may be deemed capable of having a valid will enforced if they have "lucid intervals".

Here, it seemed that Mr. Finocchiario was in a lucid interval when he revised his Will in 2007. The trial judge found and the Appellate Court agreed that Mr. Finocchiaro first signed a Will in 2001. In the 6 years between the 2001 Will and the 2007 Will in question, Mr. Finocchiaro's son died. At the time of Mr. Finocchiaro's son's death, his son's wife had filed for divorce and got a temporary restraining order. Mr. Finocchiaro became increasingly estranged with his son's wife and family.

The 2007 Will revision seemed to directly address those family issues. It did not allow the son's family to share in Mr. Finocchiaro's assets. If he did not revise his will, his son's family, from which he was now estranged, would have taken a large share of his estate.

The trial judge pointed to these family dynamics as clear motivators for Mr. Finocchiaro's revision of his Will in 2007. After his son died, Mr. Finocchiaro had legitimate reasons to revise his Will -- reasons clearly detached from his dementia.

So, while Mr. Finocchiaro did show symptoms of Alzehimer's as early as 2005, he was still able to legally execute a new Will in 2007. He appeared to be lucid and his estate representative was also able to point to clear life events - independent of his Alzheimer's disease -- that would warrant a change in Mr. Finocchiaro's estate plan.

John Kundrat is a recent graduate of Rutgers Law School, who received a BA from Fordham University, researched and wrote this blog.

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