When a parent wants to change their will — capacity questions
This article is for educational purposes only and does not constitute medical, legal, or financial advice. Every family situation is different, and you should consult with appropriate professionals about your specific circumstances.
Your parent wants to change their will. Maybe they want to leave more money to one child and less to another. Maybe they want to cut someone out. Maybe they want to leave money to a grandchild or a charity instead of the original plan. Whatever the reason, your parent has made a decision and wants to change the will.
This is a normal thing. People change their wills. But when a parent wants to change their will late in life, or when a parent is dealing with health issues, capacity becomes a question. And capacity is a legal thing with real consequences. If your parent's will is changed when your parent didn't have capacity, the changed will is invalid. The old will controls, or no will controls and state law decides who gets what.
Capacity is not the same as being sick. A parent can have dementia and still have capacity. A parent can be on pain medication and still have capacity. A parent can be forgetting some things and still have capacity. Capacity is a specific legal test, and it's focused on one thing: does your parent understand what your parent is doing right now, with this will.
But capacity questions are tricky. They're subjective in some ways. They're objective in others. There's a legal standard, but people interpret it. Lawyers disagree. Courts sometimes disagree. And if someone objects to the will later, capacity becomes a fight.
This matters because wills get challenged. If one child is upset about being cut out, that child might claim your parent didn't have capacity when the will was changed. If a new partner convinces your parent to leave everything to the partner, the children might claim the parent was unduly influenced. These fights are expensive and bitter and publicly aired.
So if your parent wants to change their will, especially late in life or when your parent's health is uncertain, thinking about capacity is not cynical. It's practical. It's making sure the will is going to be what your parent actually wanted, and it's going to hold up if someone challenges it later.
What Capacity Actually Means
Capacity to make a will is a specific legal test. It's not the same as capacity to live independently, or capacity to manage finances, or capacity to make medical decisions. A person can lack capacity for one thing but have it for another. Your parent might not be able to balance a checkbook anymore but might have full capacity to make a will.
The legal test is this: At the time your parent signs the will, your parent must understand the nature of the document. Your parent must know they're making a will. Your parent must understand what property they own. Your parent must know who would naturally inherit from them, who the family members are. Your parent must be aware of their plan for the will, know what it does. And your parent must not be suffering from delusions that affect their decision.
That's it. That's the test. Your parent doesn't have to remember everything. Your parent doesn't have to be sharp as a tack. Your parent just has to understand these specific things at the moment of signing.
In practice, capacity assessments can be more complicated. Some courts look at memory, at whether your parent can remember recent events. Some courts look at whether your parent understands their financial situation, what they own and what it's worth. Some courts look at whether your parent can give reasons for the will, whether they can explain their decisions. Some courts ask about your parent's general health and functioning.
But legally, the standard is focused on these specific questions: Does your parent understand this is a will? Does your parent understand roughly what they own? Does your parent understand who their family is? Does your parent know what they want to do with the will?
A person with early-stage dementia might pass this test. A person with advanced dementia probably wouldn't. A person in pain or on pain medication might pass this test if they're lucid when the will is signed. A person who's confused but has moments of clarity might or might not pass the test, depending on when the will is signed and how clear they are at that moment.
Red Flags That Might Create Problems
If your parent wants to make a major change to the will, especially a change that's unusual or that benefits someone unexpectedly, be aware that this might create questions later. If your parent has always planned to leave everything equally to the children, and suddenly wants to leave everything to a new partner, that's unusual. It might be completely legitimate, but it's the kind of thing that might get challenged.
If your parent is showing signs of cognitive decline, that's a red flag. If your parent is confused about dates or events, or forgetful, or making poor decisions about other things, that might suggest your parent isn't in the best shape to make a major change to the will. A person can still have capacity, but these signs might make a challenge more likely or more successful.
If someone other than your parent brought up the idea of changing the will, that's a red flag. If a new partner or a child suggested to your parent that the will should change, that's called undue influence, and it's illegal. Your parent can change their will in response to suggestions, but if the change is really the other person's idea and your parent is just going along with it, that's a problem.
If the change to the will happens very quickly, that's a red flag. If your parent has been saying for years "I'm leaving money to all three kids equally," and then suddenly changes it to leave everything to one child, and this change happens within days or weeks, people will wonder what happened. This doesn't mean the change is invalid, but it might draw challenges.
If your parent is isolated from certain family members at the time of the change, that's a red flag. If one child has moved your parent away from the other children, or has your parent alone a lot, and then your parent makes a will change that benefits that child, it looks suspicious. Again, this doesn't mean anything wrong happened, but it might prompt questions.
If your parent is under the care of someone who benefits from the will change, be very careful. If a caregiver is going to inherit, or if a family member who's helping with your parent's care is going to inherit, that creates questions. The caregiver is in a position to influence your parent. This isn't automatically a problem, but it's something to handle carefully.
What Your Parent Should Do
If your parent wants to change the will, the first step is to talk to an attorney. The attorney can assess your parent's capacity. The attorney can ask your parent questions about the will, about your parent's property, about your parent's family situation, about what your parent wants to do. A good attorney will take detailed notes about this conversation, so there's a record of your parent seeming capable and making the change deliberately.
Your parent should not be rushed. If the attorney has any concern about your parent's capacity, the attorney should not proceed. A responsible attorney might suggest waiting, or might suggest having your parent's doctor confirm capacity, or might refuse to take the case if they're concerned.
The attorney should also ask about undue influence. Is anyone pressuring your parent to change the will? Is anyone suggesting what the will should say? Your parent should be honest about this. If your parent has pressure from someone, the attorney needs to know, and the attorney might suggest proceeding carefully or waiting.
The will should be signed with proper formality. Most states require witnesses to the will, and the witnesses should be people who are not benefiting from the will. The witnesses should see your parent sign, should be present for the signing, and should be able to testify later that your parent seemed to understand what was happening.
Some attorneys recommend a video recording of your parent signing the will and explaining the will to the attorney. The attorney asks your parent questions. Your parent answers. The attorney has your parent sign the will on the recording. Later, if someone challenges the will, there's a video of your parent explaining their thinking. This is not required, but it can be very helpful.
Your parent should also consider having a letter explaining the changes. If your parent wanted to cut one child out, or wanted to leave money to a grandchild instead of an adult child, your parent can write a letter explaining why. This letter is not part of the will, but it can be helpful context. Your parent can explain that the change is deliberate, that your parent thought it through, and that your parent is not being unduly influenced. The letter might prevent disputes later.
What You Should Know
If your parent is asking you to participate in the will signing, understand that you might be asked to testify later about your parent's capacity. If your parent seems confused or unable to explain the will, you might be called as a witness to that. If your parent seems clear and capable, you might be called to testify to that instead. Either way, be prepared to be honest about what you observed.
If you have concerns about your parent's capacity, you can raise them before the will is signed. You can ask your parent's doctor about capacity. You can ask the attorney to be cautious. You can suggest waiting until your parent is having a clearer day. You can suggest a capacity evaluation by a professional. Any of these approaches are reasonable if you have genuine concerns.
But if you're just unhappy about the will change, that's different. If you're unhappy because you're getting less than you expected, that's a reason to be unhappy with the will, not a reason to claim your parent lacked capacity. Those are two different things.
If you think someone is unduly influencing your parent, that's worth raising. You can talk to your parent directly. You can talk to an attorney. You can talk to other family members. But this is different from a capacity question. Undue influence means someone is improperly persuading your parent. It's possible to have full capacity but still be unduly influenced.
After the Will is Signed
Once the new will is signed and the old will is revoked, that new will is your parent's will. It's what will be followed when your parent dies. If someone is going to challenge it, they probably will, but the burden is on them to prove that your parent lacked capacity or was unduly influenced. Unless your parent's capacity or your parent's state of mind at signing was obviously problematic, the will probably stands.
Your parent should store the new will safely and tell the people who need to know about it. The executor needs to know there's a new will and where to find it. Your parent's children might need to know. Your parent's attorney might store a copy. Some people keep the original will in a safe deposit box. Some people keep it at home. The important thing is that the will doesn't get lost.
Your parent might also want to tell family members about the change in advance, before your parent dies. This might prevent surprise and conflict. Or your parent might prefer to keep it private. That's your parent's choice. But at least telling the executor where the will is and that there's been a change means the executor won't be surprised and won't accidentally present the old will.
The Harder Conversation
If you're worried about your parent's capacity, or if you think someone is unduly influencing your parent, raising these concerns is not disloyal to your parent. It's protecting your parent's interests. Your parent has the right to change their will. But your parent also has the right to make that change when they're capable of making it, freely, without improper pressure.
Sometimes you're going to be wrong. You might think your parent isn't capable when your parent actually is. You might suspect undue influence when the will change is actually what your parent genuinely wants. That's possible. But raising the question doesn't hurt anyone if you raise it in good faith and with genuine concern.
What hurts people is silence. If your parent changes their will under dubious circumstances and no one says anything, and then years later you realize what happened, it's too late. If your parent's capacity was questionable and you didn't raise the question, and then someone challenges the will later and you're forced to testify that you had concerns, you look like you were part of a problem.
Being a good child in this situation is being a person who cares about your parent's autonomy and your parent's protection at the same time. Your parent gets to decide who gets what. But your parent gets to make that decision in a situation where your parent's choice is real, not coerced or confused.
How To Help Your Elders is an educational resource. We do not provide medical, legal, or financial advice. The information in this article is general in nature and may not apply to your specific situation. If you are concerned about a loved one's cognitive health or safety, consult with their healthcare provider or contact your local Area Agency on Aging for guidance and support.