As our parents and beloved family members age, it’s difficult to see their mental capacity decline. This can be problematic if the will was created or altered when the estate holder or testator was of diminished capacity. It can call the will into question, and the will may be challenged in court.
When testamentary capacity is in question
California law considers the testator to have adequate mental capacity to execute a will until proven otherwise. The testator must have the mental or testamentary capacity to understand and fulfill the duties of the will. Therefore, family members need to prove this “lack of capacity” when challenging the will. California Probate Code Section 810 states that the testator must have the capacity “to make decisions and to be responsible for their acts and decisions.”
Factors required for testamentary capacity
In California, it may be difficult to prove lack of capacity. A parent who is forgetful or eccentric is not considered incompetent. To successfully challenge the will, you need to prove that the testator lacks the required knowledge of their estate in probate court.
The testator must possess the following capacities:
- Purpose of the will: The testator needs to understand that they’re signing a will and how the will functions after they pass away.
- Aware of property and assets owned: They need to know if they own certain property, stocks, bonds, bank and retirement accounts. The testator does not have to recite account numbers, but they need to have a knowledge of the assets owned.
- Recognizes all beneficiaries: The testator needs to remember spouses, siblings, children and other family members. The testator needs to comprehend that the will is going to benefit certain parties.
- No mental disorder: The testator cannot have an advanced mental illness, such as dementia, Alzheimer’s or another severe cognitive impairment.
Resolving the risks to the family and beneficiaries
No family member or relative wants to see a loved one victimized or exploited. There are substantial risks when a testator does not possess the minimum mental capacity and cannot act in their best interest. It may be necessary to challenge the will in probate court. The entire family has a responsibility and duty to protect the testator and the estate.