Lack of Testamentary Capacity in California | Hackard Law

What Is Testamentary Capacity?

Someone who is writing a will or trust must make their desires officially binding from a legal point of view. The first key is to have the testamentary capacity to make and sign a will. That is to say, at the time that a person makes a will or trust, the person (or testator) must be at least 18 years of age and of “sound mind”—possessing testamentary capacity.

If you believe that a will or trust in which you have an interest was created by a person who lacked testamentary capacity, speak to an attorney as soon as you can. At Hackard Law, we are committed to protecting beneficiaries’ rights and getting them the assets to which they are entitled. To schedule a free initial consultation with a California estate litigation attorney, call our office today or send us an email through our online contact form.

Sound Mind

Sound mind is a term that means the person making a will or trust had the proper mental capacity to do so. If someone signs a will or trust in unsound mind, California law will not deem it enforceable. The capacity requirements for a will and trust differ, which is important for anyone who wishes to challenge the mental capacity of the person who made the will or trust. To create a trust, the person creating it must appreciate and understand the consequences of the decision. This is not true for people who are creating a will.

When Does Somebody Lack Capacity to Write a Will?

In the most obvious situations, a person who suffers from Alzheimer’s or in some instances dementia or loss or memory will lack will lack testamentary capacity. The Journal of the American Academy of Psychiatry and the Law takes complex legal and medical concepts and puts them into easy to understand terms. A person lacks sound mind if due to a disease affecting the brain the person fails to meet three requirements below.

Minimal Legal Capacity

  • People who fail to know the nature and extent of their property and other assets may lack capacity: People do need to know everything about their and assets and property in detail, but they do need to know the general nature of their property. In other words, they must have a general idea of what they own and what they do not own.
  • People whose wills are challenged cannot grasp who the natural heirs of their bounty were: Natural heirs of his or her bounty is legalese for saying that those named in the will must consist of actual living people or organizations such as family members, charities, and friends.
  • People must know that they are writing a will: This includes knowing the purpose of a will.

Establishing that a person was of unsound mind at the time of the will’s writing can prove complicated. Typically, it requires evidence of the person’s state of mind at the time the will or trust was created, which may have taken place years ago. For this reason, if you are considering a challenge to a will or a trust, retain an experienced estate litigation attorney who understands how to uncover evidence about past mental states and present it in your case’s most favorable light. At Hackard Law, our experienced lawyers have experience successfully challenging testamentary capacity. We will review your case at no cost to you to determine whether you have a case.

The Challenger’s Burden of Proof

If you believe that you can prove that the person who wrote the will failed to understand any of the above requirements due to a disease of the mind, you may invalidate that will. The person challenging the will has the burden to prove that the person who made the will was of unsound mind—the court will presume the person who made the will was competent until otherwise proven by the challenger.

To win, you will have to convince the probate court that hears estate matters that the person who made and finalized the will was not of sound mind. Evidence that may help establish this includes:

  • Eyewitness accounts of the testator’s behavior at the time of the will or trust’s creation
  • Medical records
  • Records that indicate erratic behavior in other areas of life

Potential Legal Arguments

You can challenge a will by arguing insane delusion and undue influence.

  • Insane delusion: Here, the challenger will claim that person who crafted the will was operating under an insane delusion. Naming an alien as a beneficiary, for example, constitutes an insane delusion, as is changing a will after an Alzheimer’s diagnosis.
  • Undue influence: Somebody in a position of power convinces a testator in a weakened state of mind to change a will.

Call Hackard Law Today to Schedule a Consultation with a California Estate Planning Lawyer

Attorney Michael Hackard

If you want to challenge a will or trust because you believe the testator was of unsound mind or a victim of undue influence, the lawyers at Hackard Law are here to help. Reach us by calling (916) 313-3030 from Santa Clara or (213) 357-5200 from Los Angeles, or contact us online to schedule an initial consultation. Our lawyers serve clients throughout the Los Angeles and San Francisco Bay areas, as well as the rest of California.

Attorney Michael Hackard

Attorney Michael HackardMichael Hackard is a top rated “AV” for over 20 years (“AV Preeminent is a significant rating accomplishment- a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.”). Avvo also ranks him with their highest rating – “ 10.0 Rating – ‘Superb.’” Michael is also a “SuperLawyer” – an honor reserved for no more than five percent of attorneys in each state. [ Attorney Bio ]

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