California will contest or trust contest based on mental incapacity

This article discusses a will contest based on lack of capacity or mental incompetence. Although this article directs to wills, the same analysis applies to trusts.

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.

When Is Testamentary Capacity Not Present?

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:

  •  comprehend the nature of the testamentary act,
  •  understand or recollect the nature and situation of his or her property, or
  •  remember and understand his or her relations with living descendants, spouse, parents, and others whose interests become 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.

Two Standards Used In California To Find if A Testator Is Mentally Incompetent

Under The First Standard:

A person lacks capacity (i.e. is mentally incompetent) to create a will, if they don’t understand what they are creating a will. To most people this makes intuitive sense. After all, if a person’s mind is so compromised that they don’t understand they’re signing a will (as opposed to a birthday card,check, letter, etc.) then the will is invalid. In a California will contest, there is a probability that the testator is found mentally incompetent. This is the case when the testator doesn’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 then that strongly indicates mental incompetence. Under the first standard, the law can find the testator incompetent if they don’t remember their relatives. Again, a perfect memory is not a requirement. 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 is compromised by a condition, for example Alzheimer’s, which leads them to give away their property when they die to those they otherwise would not have. At trial, this is proved by showing an existing will that is later replaced by another 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 experienced hallucinations or failing memory, can be enough to invalidate the new will.

What To Know When A Will Contest Is Based On 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.We are here to help. If you believe a loved one suffered from the lack of testamentary capacity while writing their will or trust, call us today. You can also request our free book Winning the Inheritance Battle for more information.

Scott Grossman

Scott Grossman


The Grossman Law Firm, APC · 525 B Street, Suite 1500, San Diego, CA 92101 · (951) 523-8307

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