What is Testamentary Capacity?


The creator and signer of a Will is known as a testator. Testamentary capacity, therefore, is the ability of the testator to knowingly sign his or her Will. There are numerous ailments that may result in the incapacity of the testator, preventing him or her from validating an unsigned Will. One of the most common diseases that causes this is Alzheimer’s Disease. Many Americans in their 30s, 40s, and even 50s, believe there is no threat of developing this terrible disease or other forms of dementia — they view early symptoms simply as “senility” and “growing old”.

However, as the Alzheimer’s Association points out, 1 in 3 seniors in America will die with Alzheimer’s Disease or some other form of dementia. In 2015, it was estimated that 5.3 million Americans suffered from Alzheimer’s.

As a result, it is imperative that you update your estate plan on a regular basis. Currently, Alzheimer’s Disease is the only cause of death in the top 10 causes that cannot be cured, prevented or even slowed.

But what if you fail to sign your Will and start to show signs of dementia? Is it too late? Are you unable to sign your Will? It depends on whether you have testamentary capacity. Just as there are different types and stages of cancer, there are different types and stages of dementia. To determine if you have the ability to sign your Will, the following criteria must be met:

  • Extent and value of your property — You know what assets and property you own and their current value.
  • Natural beneficiaries — You know which persons are your natural beneficiaries.
  • Disposition you are making — You understand the function of a will and how it is used to dispose of property.
  • How to form an orderly plan — You have an understanding of how these components come together to create an estate plan to distribute your assets and property.

You must understand that if your family members are unhappy with the outcome of your Will, they may seek a Will Contest on the basis that you were not of sound mind when you signed the document. Should your will be found invalid, a previous Will may be used or your Estate may pass through NJ’s intestacy laws.

The best way to ensure your Will is clearly understood and acknowledged as valid is to consult with an experienced attorney. While hashing out a comprehensive Estate Plan may not be at the top of your to-do list, it can save your heirs headaches and heart ache in the event of your death. For more information on Estate Planning in New Jersey, contact Alec Borenstein, Esq., at alec@bmcestateplanning.com, or call 908-236-6457.

Choose Wisely When Designating Power of Attorney – The Brooke Astor Estate

brooke astor, estate litigation, wills and trusts, estate planning, union and hunterdon counties new jersey

Choose Wisely When Designating Power of Attorney – The Brooke Astor Estate

Brooke Astor was a New York writer, socialite and philanthropist who donated approximately $200 million dollars to numerous organizations including the Bronx Zoo, the Metropolitan Museum of Art and the New York Public Library. For her contributions to the city, Brooke received many awards including the Presidential Citizens Medal in 1988 and the Presidential Medal of Freedom in 1998.

Unfortunately, as Brooke got older, it became apparent that she was suffering from Alzheimer’s disease. Her son, Anthony Marshall, who resented her for abandoning him in English-style boarding schools as a youth, quickly swooped in along with her estate attorney Francis X. Morrissey Jr., and swindled her out millions.

Brooke’s other relatives have explained that eventually her condition deteriorated so severely that she could no longer recognize family members. In addition to inducing his mother to amend her will several times, Mr. Marshall gave himself a $1 million retroactive raise for managing his mother’s estate.

On Oct. 8, 2009, after 12 days of deliberation, a jury in State Supreme Court in Manhattan convicted Mr. Marshall on 14 of 16 counts, including first-degree grand larceny for giving himself a $1 million retroactive raise.

Additionally, Mr. Morrissey was found guilty of fraud and conspiracy and of forging Mrs. Astor’s signature on an amendment to her will. The jury found that Morrissey and Marshall had taken advantage of Mrs. Astor’s failing mental health to gain control over her fortune. In 2009, both men were sentenced to one to three years in prison; Marshall served only 2 months due to his failing health.  In November of 2014, Anthony Marshall passed away at home.

Brooke Astor could have prevented the legal mess that ensued after she succumbed to Alzheimer’s disease by giving power of attorney to a more trustworthy person. For many years she had a strained relationship with her son Anthony; an individual who resented her well into his adult years. Yet for some reason, she gave him power of attorney.

If you are planning your estate, it is important that you sit down with an experienced lawyer. He or she can go over issues like power of attorney, living trusts, etc., and explain which mechanisms are best for your situation. For more information on estate planning in Hunterdon or Union Counties, New Jersey, contact Alec Borenstein, Esq., by email at alec@bmcestateplanning.com or call 908-236-6457 today.

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