Dad had dementia when he made his will. Is it valid?
Your co-pilot in inheritance law
Mag. Nevena Shotekova-Zöchling
Attorney in Vienna · 16 years of legal practice · Inheritance law
A shaky hand is not yet a confused mind.
Every day with the dog
Shortly before Christmas, a father writes his will by hand: one daughter is to inherit, the other is to receive only her compulsory share. He is not a healthy man at this point. He has early-stage dementia, has survived a heart attack, takes a lot of medication and drinks alcohol now and then. Good days alternate with bad ones.
After his death, the second daughter challenges the will. Her argument: her father had dementia. And she holds a strong piece of evidence – the will itself. Towards the end, the handwriting becomes shakier and harder to read.
We represent the first daughter. The case goes to court.
A shaky hand is not a confused mind.
In court, the question is no longer whether he had dementia. That is established. The question is: how was he in those weeks before Christmas? The court commissions an expert report and hears many witnesses. What impression did the father make at the time? Was he clear-headed? Did he know what he was doing?
The picture that emerges: yes, there were weak moments and weak days. But he always took care of his dog. He walked it every day, and shortly before, he had even taken it to the doctor. Someone who cares so reliably for another living being still has the important things under control.
The expert examined everything: the entire medical history, the hospital stays, which medication the father received and when. His findings confirm the witnesses: when it came to important matters, the father was still fully in his right mind.
The will held.
What we learn from this: the burden of proof lies with whoever challenges the will. A dementia diagnosis alone is not enough. We have handled several such cases, and each time it is a fine line between what really happened and what can be proven. What matters is everyday life: who saw the deceased during that period? What did he still do himself? What do the medical records say about exactly those weeks? These traces should be secured early, while witnesses still remember.
What the law says
- A person has testamentary capacity if they can understand the meaning and consequences of their will and act accordingly (section 566 of the Austrian Civil Code, ABGB). The question is about the moment of making the will – not the month before or after.
- The diagnosis alone is not enough. Especially with early dementia there are lucid phases. A will made in such a phase is valid.
- The burden of proof lies with the challenger. Whoever claims the deceased lacked capacity must prove it. If doubts remain, the will stands.
- Handwritten will: it must be written entirely in the testator’s own hand and signed (section 578 ABGB). A date is not mandatory – but with dementia it is worth its weight in gold, because without a date “the day” can hardly be examined.
How the state of mind on “the day” is examined
- Medical records, doctors’ letters and findings around the date
- Nursing documentation and the medication plan – some medicines strongly affect mental state
- Statements from the family doctor, carers, neighbours and relatives
- The will itself: content, structure, logic, handwriting
- A psychiatric expert opinion that assesses all this retrospectively – supplemented where necessary by a handwriting analysis
If you want to challenge a will
- Secure medical records immediately – they are not kept forever.
- Find out who was in contact with the deceased on that day.
- Get a realistic assessment of whether the evidence is sufficient. A lost lawsuit is expensive.
If you are making a will yourself and have a diagnosis
- Date the will.
- Have a doctor confirm on the same day that you are oriented and capable of judgment.
- Make it with the assistance of a lawyer or notary – and with witnesses who can testify later.
More on testamentary capacity, medication and formal defects: The will was made before a notary. Can I still do anything? →
Dementia – and a will that favours someone?
We check whether it holds – or defend it. Initial assessment within 48 hours on working days; the first consultation is free of charge.
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