A Will Can be Set Aside and Disregarded if a Court Finds that the Maker Lacked Testamentary Capacity
PRESUMPTION OF CAPACITY
CAPACITY TO MAKE A VALID WILL
A person must be at least 18 years old and of sound mind to make a will. A person is not mentally competent to make a will if at the time of making the will (i) he or she does not understand the nature of the testamentary act, (ii) does not understand and recollect the nature and situation of his or her property, (iii) and does not remember or understand his or her relations to living descendants, spouse, parents, and those whose interests are affected by the will. Also a person is not mentally competent to make a will if he or she suffers from a mental disorder with symptoms including delusions or hallucinations, which result in his or her devising property in the will in a way which except for the existence of the delusions or hallucinations he or she would not have done.
CHALLENGING THE VALIDITY OF A WILL
California law provides for three methods of contesting a will on grounds of lack of capacity. The location for decision is the probate court. The starting point of a probate proceeding is for an interested person, typically the named executor, to file the will with the court as part of a petition to probate the will and the estate. Un- less there are timely objections, the will is admitted to probate and the right to challenge will be lost. The first method to contest the will would be to file an objection to the petition for probate before it comes up for hearing. The second method would be to file a petition to revoke the probate within 120 days after the will is admitted to probate. The last way which is seldom used is to file a complaint in intervention. There are many technical rules and time deadlines involving will contests so you will need to consult with skilled legal counsel to make a valid challenge.
LEGAL EFFECT IF IT IS PROVEN THAT THE WILL MAKER LACKED CAPACITY
Proven lack of mental capacity makes a will void and invalid. The instructions for distribution in the will would then be disregarded.
The consequence of a will being invalid is that the deceased person’s money and property will be distributed according to the laws of “intestate succession”. Those laws provide guidelines for distribution. For example, if a person dies with a surviving spouse and no children, then the spouse receives the entire estate. If a person dies with a surviving spouse and one child then the estate is split 50-50. If there is more than one child then the estate is divided one third to the surviving spouse and two thirds amongst all the children. Sometimes children who are not mentioned in the will or are given a lesser share than they think they deserve will bring a will contest petition in the probate court. The point of the will contest petition would be to have the will declared invalid so they could get a larger share.
COMPARE THE CAPACITY TO MAKE A TRUST
Generally speaking, the legal rules to prove that a person is competent enough to execute a will are not as stringent as competency to execute a trust. A trust is considered a contract and the law has higher standards for capacity to make contracts. That capacity means that a person has the ability to communicate verbally or by any other means and to understand and appreciate (i) the rights, duties, and responsibilities created by or affected by the trust; (ii) the probable consequences for the decision-maker and the persons affected by the decision; and (iii) the significant risks, benefits, and reasonable alternatives involved in the decision.
CALL (949) 851-1771 to speak with Lawyer David L. Crockett
PROOF OF CAPACITY PRIOR TO MAKING A WILL OR TRUST
If a person wanting to make a will or trust has questionable mental capacity, it is advisable to have that person tested by a licensed mental health professional. The mental health professional will then make a report and/or fill out a court form having to do with capacity as a backup to the attorneys file. If the report indicates the person does have the proper legal capacity, then that is good evidence to have available to defend against a will contest or trust contest case. If the person lacks capacity then there are other legal alternatives to still make a will and to make a trust to avoid probate. The other legal alternatives are more involved but may still be preferable to having to face a will contest proceeding.
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