Did your loved one have the capacity to sign a will?

Lynard C. Hinojosa

While estate planning and wills are meant to bring forth the desires of an individual after they pass, there are situations when they do not act as such. Sometimes, you must contest an estate plan because you suspect that it does not line up with your loved one’s actual wants. While you cannot contest a will simply because you do not agree with it, some have concerns about the mental ability of the person who signed it. In this case, it may be helpful to seek litigation.

What is testamentary capacity?

Testamentary capacity is the mental ability and competence to understand their estate, what a will is and its power, who the beneficiaries are and the legal ramifications of signing a will. According to California code 6100.5, an individual does not have testamentary capacity or is not mentally competent to sign off on a will if:

  • They do not have the ability to understand the nature of the “testamentary act,” or signing of the will
  • They do not understand or remember the details of their estate
  • They do not understand the beneficiaries and who will be affected by the will
  • They have a mental health disorder that affects their mental capacity

What health conditions may affect my loved one’s capacity?

According to California law, a mental health disorder that has, “symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.”

Like these psychotic disorders, mental health issues that affect one’s understanding of reality like dementia and Alzheimer’s can be a factor in disproving testamentary capacity if they affect the person’s understanding of the will.

When should I be concerned about testamentary capacity?

If you are considering whether your loved one had the proper mental ability to create their estate plan, here are a few questions to ask yourself.

  • Was the will signed or changed when your loved one was experiencing mental illness?
  • Does the will line up with previously stated or implied desires by your loved one?
  • Does the will seem out of character?
  • Does it significantly benefit one or a few people?
  • Who was present or influential during the time that the will was made or changed? Would they have reason to influence your loved one?

It can also be helpful to talk with a legal professional to discuss if capacity should be in question or if there were other influences involved in creating the estate plan. They can help you better understand if you have grounds for contest.




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