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Get Your Questions Answered – Call Me To Schedule Your 30 Minute Phone Consultation (719) 985-8192
When a will is challenged, one of the most complex and emotionally charged issues is whether the person who created it had the mental capacity to do so. Courts in Colorado apply specific legal standards when evaluating these claims, and those standards do not always align with what families may assume qualifies as incapacity.
This article explores mental incapacity and will contests in Colorado, including who can bring a challenge, how courts evaluate capacity, and why timing and evidence matter so much in these cases.
Mental incapacity means that, at the time a person is making a decision (whether that decision is to create a will, sign a power of attorney, or execute another legal document), they do not have the ability to understand the decision they are making and the natural consequences of that decision.
In other words, they lack the mental capacity to understand what they are doing, what they own, and how their decisions will affect others.
To challenge a will, you must be what the law refers to as an interested person. An interested person includes:
These individuals or parties have legal standing to challenge a document or the capacity of the person who created it.
Challenging capacity can be difficult. Most often, it is done through professional evidence, particularly from mental health and medical professionals. If the person is still alive, one of the most common and effective methods is to have them undergo a neuropsychological examination.
Best practice comes into play when someone is creating a will, and there is any question about capacity. For example, a person may have been diagnosed with dementia, but if it is in the early stages, they may still have the legal capacity to create a will. As long as they understand what assets they have and who the normal recipients of those assets would be, they can still legally execute a will.
What is recommended and considered a best practice is to have the person undergo a mental evaluation before creating the will. The most definitive evaluation is a neuropsychological exam. If that exam shows the person has mental capacity and clarity of thought, it becomes very difficult to challenge the will later.
If someone challenges capacity close to the time the document was executed, a neuropsychological evaluation can still be useful. For example, if the evaluation shows the person does not have capacity now, professionals can assess how long that capacity may have been diminishing. That can be used to challenge a recently executed document, such as a power of attorney.
If the evaluation reveals that the person lacked capacity for a significant period of time (and not just in the months immediately preceding the evaluation) and the document was signed during that period, that can form the basis for a challenge.
Capacity challenges can also be made after death, but they are more difficult. In those cases, medical professionals who treated the deceased are interviewed, along with collateral witnesses—people who knew the individual and interacted with them. It can be done, but it requires more effort and supporting evidence.
Tammy Akers brings deep, hands-on experience to the emotionally charged issue of mental incapacity in Colorado will contests. As the founder of the Law Firm of Tammy W. Akers, LLC, she has guided families through complex probate disputes involving dementia, contested wills, and conflicting medical evidence. Tammy understands how Colorado courts actually evaluate capacity, not just what families assume qualifies, and she knows how timing, documentation, and professional evaluations can make or break a case.
If you’re questioning a loved one’s will or facing a potential challenge, reach out to Tammy Akers for clear guidance and a strategy grounded in real probate experience.
If the court determines that the will was signed by someone who did not have legal capacity, the will is invalidated. When that happens, the estate’s assets are distributed according to Colorado’s intestate statutes, as though no will existed.
The most persuasive evidence typically includes medical records, neuropsychological evaluations, and testimony from medical and mental health professionals. Evidence from individuals who observed the testator at or near the time the will was executed can also be important.
What Happens Next? Is Separate Legal Action Necessarily Required, Or Can Things Be Resolved Within The Probate Case?
Most often, this issue arises because someone has filed a legal challenge in probate court contesting the validity of the will.
Occasionally, an interested person may contact the personal representative and present clear evidence of incapacity, such as a neuropsychological evaluation conducted shortly before the will was signed. In those situations, the parties may agree that the will is invalid and resolve the issue without prolonged litigation. However, most cases are resolved through a formal challenge within the probate proceeding.
Clients often come in and say things like, My dad was really forgetful. He couldn’t remember names. He would call me by my brother’s name, so I know he didn’t have capacity.
That alone does not mean someone lacked legal capacity. In the early stages of dementia, a person may have good days and bad days. At certain times of the day, they may be very clear, while at other times they struggle more.
There is a condition commonly referred to as Sundowner Syndrome. Someone experiencing cognitive decline may function well earlier in the day, but as the day goes on, particularly toward evening, their cognitive abilities diminish. So a person may have full capacity at nine o’clock in the morning but significantly reduced capacity later that same day.
What matters legally is the person’s capacity at the exact time they executed the will. Forgetfulness, confusion, or memory lapses do not automatically mean incapacity. If the person understood the nature of their assets, knew the normal recipients of those assets, and understood the legal effect of the document they were signing, they may still meet the legal standard for capacity.
If the individuals present at the execution of the will can testify that the person clearly understood what they owned and where they wanted it to go, and there is no strong evidence to the contrary, then there is often very little basis for successfully challenging the will.
For more information on mental incapacity and will contests in Colorado, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (719) 985-8192 today.
Tammy Akers brings deep, hands-on experience to the emotionally charged issue of mental incapacity in Colorado will contests. As the founder of the Law Firm of Tammy W. Akers, LLC, she has guided families through complex probate disputes involving dementia, contested wills, and conflicting medical evidence. Tammy understands how Colorado courts actually evaluate capacity, not just what families assume qualifies, and she knows how timing, documentation, and professional evaluations can make or break a case.
If you’re questioning a loved one’s will or facing a potential challenge, reach out to Tammy Akers for clear guidance and a strategy grounded in real probate experience.
