Testamentary Capacity

Testamentary capacity, or competency refers to the determination that a person retains the capacity for a specific action. Incompetent is also used to describe persons who lack mental capacity to make contracts, handle their financial affairs or other personal matters, persons who may need a legal guardian to handle their affairs.

Capacity refers to the intact ability to respond to a particular situation with appropriate appreciation and to act in one’s own self-interest. A person may lack capacity for a number of different reasons:

  • Memory impairment such as Alzheimer’s Disease
  • Inability to read or understand language
  • Stroke, loss of brain functions related to judgment and due to frontal lobe disorders
  • Depression

California law presumes that anyone of legal age (18) who has drafted and executed (signed, witnessed, and notarized) a will to be mentally competent or “of sound mind.”

A mentally competent person can divide up his or her estate however he or she wants. None of his or her relatives is legally entitled to an inheritance, nor is there any obligation to prioritize one beneficiary over another. However, if the person making the will or trust was not mentally competent at the time of drafting or execution, then the California will can be contested in court.

What Constitutes Mental Incompetence?

A mentally incompetent testator may be someone who, at the time of making or signing a will or trust:

  • Doesn’t understand what it means to make a will or trust
  • Can’t remember and understand what assets or property he or she currently owns
  • Can’t remember and understand his or her relationship to people impacted by the document
  • Suffers from delusions, hallucinations, or other cognitive problems

Issues of competence are often open to interpretation and conflict. The elderly or persons in poor health may forget details about their situation or the people in their lives. However, forgetting the names of grandchildren or not being able to remember every account doesn’t necessarily demonstrate mental incompetence. Essentially, if an individual does not understand he or she is making or signing a will, then they aren’t mentally competent. Perfect memory is not a requirement for sound mind.

Forgetfulness can be a strong indication of incompetence when a person can’t remember where he lives or believes a deceased spouse is still alive. Potential red flags are raised when significant changes are made to wills or trusts shortly before death. If these issues confront you or loved ones, contact the estate and probate litigation attorneys at the Boesch Law Group.


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