In Mississippi, a diagnosis of dementia will not, of itself, prevent a person from executing valid legal documents such as wills, trusts or powers of attorney as long as the person understands the nature and effects of those actions. This principle of “legal capacity” was confirmed in the recent Georgia Court of Appeals opinion of Creamer v. Manley.

Willifred Thompson executed her Last Will and Testament in April 2019. She left the majority of her estate to her friend and caregiver, Mable Manley, and also named Mable the executor of her estate. Following Willifred’s death, Mable petitioned to probate Willifred’s will. 

Two of Willifred’s second cousins (“the cousins”), whom Willifred had not seen in 17 years, challenged the validity of the will due to lack of testamentary capacity. The probate court admitted the will to probate, and the cousins appealed to the superior court. Mable moved for summary judgment, and the superior court granted the motion. 

The cousins appealed. Under Georgia law, testamentary capacity exists when the testator has a decided and rational desire as to the disposition of property at the time of executing the will. Willifred’s attorney testified that he had known Willifred for many years, and when they met to discuss making her will she clearly and rationally stated how she wanted to dispose of her estate, Willifred had time to review the draft to ensure it met her desires, and they met again to review and execute the will. At no point did Willifred’s attorney detect a lack of awareness or inability by Willifred to direct her final affairs nor that she lacked the necessary testamentary capacity to execute a will. 

The cousins cited an affidavit by Willifred’s doctor stating that in 2019 Willifred had advanced dementia. Her doctor clarified in a subsequent affidavit, however, that his prior affidavit should not be construed to mean that Willifred did not have the requisite mental capacity to execute her will. Moreover, less than a month after Willifred executed her will, her doctor stated in written correspondence that “[Willifred] is of sound mind to make decisions relating to her will and sign her will.” The appeals courts found that dementia alone does not destroy testamentary capacity; based on the affidavits in the record there was no genuine issue of material fact that she lacked the requisite mental capacity when she signed her will.