Probate, trust, guardianship and inheritance litigation
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Legal Mental Capacity For California Wills And Trusts

By Andrew Gold, Esq.

California has several different mental capacity standards that apply depending on the situation – there are different standards for issues concerning contracts, marriage, medical decisions, and testamentary documents.  Mental capacity for testamentary documents in California such as wills and trusts is codified in the California Probate Code.

What is Testamentary Capacity In California Probate?

When a testator in California executes a will or trust, they are required to have “testamentary capacity.”  If a testator does not have testamentary capacity at the time they execute their will or trust, the will is invalid under California law.  Learn more about How to Contest A Will In California.

There are two testamentary capacity standards set forth in section 6100.5 of the California Probate Code, which states:

(a) An individual is not mentally competent to make a will if, at the time of making the will, either of the following is true:

(1) The individual does not have sufficient mental capacity to be able to do any of the following:

(A) Understand the nature of the testamentary act.

(B) Understand and recollect the nature and situation of the individual’s property.

(C) Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

(2) The individual suffers from a mental health disorder with 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.

(b) This section does not supersede existing law relating to the admissibility of evidence to prove the existence of mental incompetence or mental health disorders.

(c) Notwithstanding subdivision (a), a conservator may make a will on behalf of a conservatee if the conservator has been authorized to do so by a court order pursuant to Section 2580.


Therefore, under the first testamentary capacity standard in California, a testator generally lacks testamentary capacity to make a will or a trust if the testator is unable to understand the nature of his testamentary act, the testator’s property, and the testator’s relations to his family and those whose interests are affected by the will.

Under the second testamentary capacity standard, a testator lacks testamentary capacity if an individual suffers from a mental health disorder involving delusions or hallucinations, which result in the testator’s devising property in a way that the testator would not have done but for the hallucinations or delusions.


How High Is The Standard For Testamentary Capacity For A California Will Or Trust?

The standard for testamentary capacity in California is “exceptionally low.”  In Marriage of Greenway (2013) 217 Cal.App.4th 628, the California appeals court stated:

Interestingly, this seemingly clearly written statutory authority has been interpreted by the courts to create a very low standard for testamentary capacity… it is well settled, “old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.” (Estate of Selb, supra, 84 Cal.App.2d at p. 49.) Indeed, even hallucinations and delusions do not demonstrate lack of capacity if they are not related to the testamentary act. (Estate of Perkins (1925) 195 Cal. 699, 704 [235 P. 45]; see Estate of Fritschi (1963) 60 Cal.2d 367, 372 [33 Cal. Rptr. 264, 384 P.2d 656] [testator in hospital with fatal cancer, physically weak, disturbed and under heavy dosage of drugs possessed testamentary capacity].) And like marital capacity, the mere fact the testator is under a conservatorship will not support a finding of lack of testamentary capacity without additional evidence of mental incompetence for making a will.

Is There A Presumption of Mental Capacity Under California Law?

Yes.  The Due Process in Competence Determinations Act found in the California Probate presumes that all persons have capacity “to make decisions and to be responsible for their acts or decisions.”  California Probate Code §810.  This presumption of capacity is rebuttable.

California Probate Code § 811 sets forth a wide range of potential mental deficits that may support a determination that a person is of unsound mind or lacks capacity to make a decision or do a certain act, as follows:

(1) Alertness and attention, including, but not limited to, the following:

(A) Level of arousal or consciousness.

(B) Orientation to time, place, person, and situation.

(C) Ability to attend and concentrate.

(2) Information processing, including, but not limited to, the following:

(A) Short- and long-term memory, including immediate recall.

(B) Ability to understand or communicate with others, either verbally or otherwise.

(C) Recognition of familiar objects and familiar persons.

(D) Ability to understand and appreciate quantities.

(E) Ability to reason using abstract concepts.

(F) Ability to plan, organize, and carry out actions in one’s own rational self-interest.

(G) Ability to reason logically.

(3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following:

(A) Severely disorganized thinking.

(B) Hallucinations.

(C) Delusions.

(D) Uncontrollable, repetitive, or intrusive thoughts.

(4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual’s circumstances.

Challenging a will or trust in California based on lack of testamentary capacity can be challenging.  Read our interview with a California clinical neuropsychologist to learn why expert testimony and analysis is often critical in these cases.

Andrew S. Gold, Esq.

Probate & Trust Litigation

Hourly & Contingency Fees Available

(650) 450-9600