California will contest or trust contest based on mental incapacity

The Grossman Law Firm, A.P.C. are Riverside, California probate lawyers.  We help probate estates in Riverside County, California.  We appear in the Riverside probate court for cases in the area bounded by Temecula, Corona, and Banning, California.  We appear in the Palm Springs/Indio probate court for cases from Palm Springs, Palm Desert, Rancho Mirage, Desert Hot Springs, Cathedral City, Indian Wells, and Indio, California.  If you  would like more information on probate and trust administration then order our free book The Insider's Guide to California Probate and Trust Administration as well as our free DVD Probate a Will or Administer a Trust After the Death of a Loved One.

A California will contest is a lawsuit to invalidate a will. A trust contest is a lawsuit to invalidate a trust. Will contests and trust contests are types of probate litigation. A will contest or trust contest can be based on lack of capacity, undue influence, fraud, duress, menace, or mistake. This article discusses a will contest based on lack of capacity (or mental incompetence.) Though this article is directed to wills, the same analysis applies to trusts.

Testamentary capacity (i.e. mental competence) requires the testator (the person who created the will) to reach the age of majority (which is 18 years of age in California) and be of sound mind. California law says a person is not mentally competent to make a will, if at the time of making the will he or she:
1. Does not have sufficient mental capacity to:
o understand the nature the testamentary act,
o understand or recollect the nature and situation of his or her property, or
o remember and understand his or her relations to living descendents, spouse, parents, and others whose interests are affected by the will OR

2. Suffers from a mental disorder with symptoms including delusions or hallucinations that results in his or her devising property in a way that, except for the delusions or hallucinations, he or she would not have done.
That's a lot of legal language that can be hard to understand, so let's break it down. Under the first standard, a person is lacks capacity (i.e. is mentally incompetent) to create a will, if they don't understand what they are doing is creating a will. To most people this makes intuitive sense. After all, if a person's mind is so badly compromised that they don't appreciate that what they're signing is a will (as opposed to a birthday card, letter, check, etc.) then you would expect the will to be invalid.

In a California will contest the testator can be found to be mentally incompetent if they don't understand or remember the property they own at the time they're making their will. In other words, the will is not valid if the testator does not realize he or she is giving away his or her property when they die. The testator's failure to remember their own property also makes them mentally incompetent. The testator doesn't have to have a perfect memory or recall all their property. But if they don't remember a significant item like owning their own home or individual retirement account then that is a strong indication of mental incompetence. Under the first standard, the testator can also be found incompetent if they don't remember who their relatives are. Again, a perfect memory is not required. It is common as people age for some detail to escape them. Forgetting the grandchildren's names is probably not a sign of mental incompetence but forgetting one or more children probably is.

Under the second standard, the testator has to be so compromised by a condition, for example Alzheimer's or dementia, that they give away their property when they die to those they otherwise would not have. This is often proved at trial by showing an existing will that is replaced by a later will. Typically, but not necessarily, the old will leaves property to family members in equal shares. The new will usually favors one family member at the expense of all the other family members. This evidence, in conjunction with proof that the testator was seeing or hearing things that weren't there or had a badly failing memory, can be enough to invalidate the new will for lack of testamentary capacity.

When a will contest is based on lack of testamentary capacity it is important to know that California law presumes the testator is competent. A competent person can leave his or her property to anyone he or she wishes. The testator does not have to take into account the desires of the beneficiaries or anyone else. Overcoming this presumption requires proving it is more likely than not that the testator lacked capacity. Whether there is enough proof always depends upon the facts of the particular case.

The Grossman Law Firm, A.P.C. are San Diego, California probate lawyers.  We help probate estates in San Diego County, California.  We appear in the San Diego probate court for probate cases that come San Diego County south of Escondido.  We appear in the North County San Diego/Vista probate court for probate cases that come from Escondido all the way north to Fallbrook, California.  If you  would like more information on probate and trust administration then order our free book The Insider's Guide to California Probate and Trust Administration as well as our free DVD Probate a Will or Administer a Trust After the Death of a Loved One.