The last will and testament is probably the most common estate planning tool out there. The last will and testament is the easiest way to guarantee that your belongings will be distributed the way you want them to be, upon your death. The trouble is, not everyone has the legal competency to create a valid will. If the person creating a will (the testator) does not have the required legal capacity, the will won’t be validly executed. There are certain basic requirements in order to create a valid will.
How does the court define legal competency?
The testator must first be old enough to make a last will and testament. The age of majority is different in each state. In California, a testator must be at least 18 years old. In most states it is presumed that the testator has the necessary mental capacity to make a will, unless someone challenges that capacity. If that happens, the court will determine whether the person who created the will was incapacitated at the time. Generally speaking, in California you are considered mentally competent to sign a will if you meet the following criteria:
- You understand the nature and extent of your property, meaning you know what you own and how much you own.
- You remember and understand who your relatives and descendants are and are able to articulate who should inherit your property.
- You understand what a will is and how it disposes of property.
- You understand how all these things relate to each other and come together to form a plan.
The statutory definition of incapacity in California
California’s definition of incapacity is quite detailed. Under California law, an incapacitated person is defined as follows:
[a] person is of unsound mind or lacks the capacity to make a decision or do a certain act when there is a deficit in at least one of the following mental functions and the deficit significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the act or decision in question.
The statute goes on to list several mental functions relating to alertness and attention, information processing, thought processes, and the ability to modulate mood and affect. Capacity can be a complicated concept in some states. That’s why it is important to discuss your situation with your estate planning attorney.
The effects of mental illness
Simply having a mental illness or disease does not automatically mean a person lacks the required mental capacity. If it can be shown that the testator has periods of lucidity, they may still be competent to sign a will during one of those periods. Millions of people are suffering from dementia. If they were able to engage in proper estate planning before the symptoms began they may still be able to create a will. If you or a loved one has dementia or another mental illness that affects their legal capacity, it may not be too late. It is wise to consult an estate planning attorney in California to determine whether a potential testator meets the criteria to be considered competent.
Temporary incapacity does not necessarily preclude creating a last will and testament
In many cases, legal incapacity may only be temporary. When the condition or trauma that caused incapacity has been resolved, that individual’s legal capacity can return. For example, intoxication is a temporary condition that causes legal incapacity, which is resolved once the person becomes sober. Another example is the incompetency of a minor, which ends when the person reaches the age of majority. A medical condition such as a coma or a state of unconsciousness can also be temporary. Once the person recovers from that condition, his or her ability to make decisions can also return.
Undue influence or fraud as a basis for challenging competency
In some cases, a forensic specialist may be required to determine whether there are any signs of undue influence. This issue typically arises when someone exploits an emotionally vulnerable person who would otherwise be competent. Another situation that may arise is when a beneficiary of the will made a false statement to the testator which caused the testator to change the will for the benefit of the beneficiary.
Download our FREE estate planning worksheet! If you have questions regarding creating a will, or any other estate planning needs, please contact the Schomer Law Group for a consultation, either online or by calling us at (310) 337-7696.
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