Dec272025
Estate Planning Q&A Series

How can we set up a valid will for a relative who has dementia, and how do we know if they still have capacity to sign? – North Carolina

Short Answer

In North Carolina, a person with dementia can still sign a valid will if, at the time of signing, they understand that they are making a will and can make the basic decisions the will requires. The will also must be executed with the required formalities—typically a written will signed by the testator and witnessed by at least two competent witnesses. Because dementia raises a higher risk of a later challenge, the safest approach is a carefully planned signing that documents capacity and avoids any appearance of pressure or coaching.

Understanding the Problem

In North Carolina estate planning, the decision point is whether a family member with dementia can still legally make and sign a will. The key trigger is the person’s mental ability at the moment the will is signed, not the medical diagnosis alone. If capacity exists, the will can be set up and signed using the standard will-signing process; if capacity does not exist, family members cannot use a power of attorney to “sign a will for them.”

Apply the Law

North Carolina recognizes several types of wills, but the most common and reliable is an attested written will. An attested written will must be signed by the testator (or signed for the testator, in the testator’s presence and at the testator’s direction) and it must be attested by at least two competent witnesses. Capacity for a will is a separate legal question from having dementia; the core issue is whether the person is of “sound mind” to make a will when signing, and whether the signing reflects the person’s free and voluntary act rather than undue influence.

Key Requirements

  • Proper execution (formalities): A written will must be signed as a will and witnessed correctly. The witnesses must sign in the testator’s presence, and the testator must indicate to each witness that the document is the testator’s will (often by signing in front of the witness or acknowledging a prior signature).
  • Testamentary capacity at the time of signing: The testator must have enough mental ability at signing to understand they are making a will and to make meaningful choices about who receives property. A dementia diagnosis does not automatically remove capacity, but it increases the need to document what the testator understood at signing.
  • Voluntary decision (no undue influence): The will should reflect the testator’s own decisions. When a person is vulnerable due to cognitive decline, courts scrutinize whether someone else pressured, isolated, or directed the outcome.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The family wants a will for a relative who has dementia and already has financial and health care powers of attorney. Under North Carolina law, the existing powers of attorney do not solve the will problem because a will must be executed as a will by the person who is making it, with the required witnesses. The workable path depends on whether the relative can still show testamentary capacity during a properly supervised signing and whether the signing is structured to minimize undue influence concerns.

Process & Timing

  1. Who files: No one files a will while the testator is living. Where: The will is typically kept in a safe place; it can also be deposited for safekeeping with the Clerk of Superior Court in the county where the testator chooses to file it. What: An attested written will; many attorneys also prepare a self-proving affidavit to be signed at the same time before a notary. When: As soon as feasible while the testator can still reliably participate in a signing.
  2. Drafting and capacity planning: The drafting meeting should focus on the testator’s wishes, in simple terms, and should be scheduled for a time of day when cognition is usually best. A best practice is to keep potential beneficiaries out of the room for the key conversations and the signing, so the record shows independent decision-making.
  3. Signing ceremony: The testator signs (or directs someone to sign for them in their presence), and at least two competent witnesses sign in the testator’s presence. If the will is made self-proved, the testator and witnesses also sign the self-proving affidavit before a notary as permitted by statute, which can reduce later problems proving the will in probate.

Exceptions & Pitfalls

  • Powers of attorney do not create a will: A health care agent’s authority is limited to health care decisions and does not give authority over property or estate planning, and an agent under a financial power of attorney generally cannot execute a will “for” the principal. If the relative cannot personally meet the will capacity standard, the family usually must shift to other planning tools (for example, court guardianship planning), but that is a different question than this article addresses.
  • Wrong witnessing procedure: A common mistake is having people sign in the wrong order, outside the testator’s presence, or without the testator clearly indicating the document is a will. North Carolina’s statute allows some steps to occur before witnesses separately, but the safest approach is one controlled signing ceremony that satisfies every requirement.
  • Undue influence risk: Dementia makes later challenges more likely, especially if a caregiver or family member who helped arrange the will receives a larger share. A clean process (independent attorney meeting, neutral witnesses, and no coaching) helps reduce that risk.
  • “Emergency” will shortcuts: North Carolina allows holographic and nuncupative wills in limited circumstances, but these options are easy to get wrong and often trigger litigation. They are not a substitute for a properly supervised signing of an attested will when there is time to do it correctly.

Conclusion

In North Carolina, a relative with dementia can sign a valid will if they still have testamentary capacity at the time of signing and the will is executed with the required formalities—typically a written will signed by the testator and witnessed by at least two competent witnesses. Because dementia increases the risk of a later challenge, the safest next step is to schedule a controlled will-signing (often with a self-proving affidavit) while capacity is still present.

Talk to a Estate Planning Attorney

If a family is dealing with a loved one’s dementia and needs a will signed while capacity may be fading, our firm has experienced attorneys who can help clarify the legal capacity question, structure a proper signing, and protect the plan from avoidable challenges. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Estate Planning Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.