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Testamentary capacity and when it is missing

There are times in California when those left behind believe that the loved one who left a testamentary will, did not have the mental capacity to legally execute such a document. They believe that he or she was not of sound mind. Lack of testamentary capacity may be a basis to contest a will.

California law creates a presumption that all people have the ability to make decisions and be held accountable for those decisions or act. However, the presumption is rebuttable. Nonetheless, a mere diagnosis of a mental or physical condition is not enough. It does not mean a person lacks the capacity to execute a will or engage in other legal decision making.

Existing deficit in relevant mental functions

The law requires that there must be evidence of a deficit in one of several mental functions. There must also be evidence that connects the deficit and the act of executing a will or other intended legal act. The relevant broad areas of mental functioning include the following:

  • Appropriate mood control
  • Processing of information
  • Thought processes
  • Alertness or attention

If there is a substantial deficit in one or more areas above that significantly limits the person’s ability to comprehend the repercussions of his or her decisions in the will, the court may consider that deficit when determining testamentary capacity. If the deficit limits certain activities but does not affect his or her ability to understand his decisions concerning the will, the court cannot consider it.

When determining how major the deficit is the court looks at how often the period of impairment occurs, how acute or serious the periods are, and how often they occur.

Other abilities needed specifically for testamentary capacity

There are other considerations when determining testamentary capacity, specifically used for that legal inquiry. The person must be able to materially comprehend and grasp the relevance of the following:

  • How the decision will affect any connected responsibilities and rights
  • How the decision will affect the person and any others affected
  • The risks and rewards related to the decision
  • Whether and what are any reasonable alternatives to the decision

The person must also be able to communicate the decision by any means.

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