When a loved one passes away, family and friends go through a period of mourning that often includes strong emotions such as grief, denial, and even anger. At the same time, the legal process of probating the decedent’s estate must begin. If the decedent left behind a Last Will and Testament, the Will is submitted to the appropriate court to initiate probate. If you recently lost a loved one, and you have reason to believe that your loved one lacked the capacity to execute the Will submitted to probate, you may be entitled to contest the Will. To give you some idea what that might involve, the Los Angeles probate attorneys at Schomer Law Group, APC explain how to prove lack of testamentary capacity in California.
What Is the Purpose of Probate?
Most people leave behind an estate when they die. The estate they leave behind includes assets they owned at the time of death, such as a house, vehicles, bank accounts, and personal property. To make sure that those assets are accounted for and transferred to the appropriate new owner(s), the law requires that estate to go through a legal process referred to as “probate.” Probate also serves other purposes, including notifying creditors and allowing them to file claims against the estate and authenticating the decedent’s Will if one was left behind.
What Does It Mean to Contest a Will?
At the beginning of the probate process, the person named as the Executor in the decedent’s Will must submit the Will to the court for authentication. If you have reason to believe that the Will is invalid, you can “contest” the Will as soon as it is submitted to the court. Ideally, a petition to contest a Will is filed before the court admits the Will for probate; however, in California, you have 120 days after the Will is officially admitted for probate to file a petition to contest the Will. To contest a Will, however, you must have “standing” and allege legal grounds on which the Will could be declared invalid. Standing refers to the legal right to bring the petition. In California, you have standing if you are a beneficiary under the current Will or a previous Will, a legal heir, or a creditor of the estate. Legal grounds on which a Will may be contested in California include:
- Lack of capacity
- Undue influence
- Fraud
- Improper execution
- Revocation (there is a more recent Will)
What Is Lack of Testamentary Capacity in California?
Lack of testamentary capacity is frequently alleged in a Will contest. For a Will to be valid, the Testator (person who executed the Will) must have the legal capacity to execute the Will. It is imperative to understand what testamentary capacity is if you hope to prove that a decent lacked the capacity. Testamentary capacity is not the same as contractual capacity. A Testator can lack the capacity to enter into a contract yet have the capacity to execute a Will. California Probate Code §6100 governs a Testator’s capacity to execute a Will. A Testator is presumed to have the required capacity unless one of the following applies:
- The individual does not have sufficient mental capacity to be able to do any of the following:
- Understand the nature of the testamentary act.
- Understand and recollect the nature and situation of the individual’s property.
- Remember and understand the individual’s relations to living descendants, spouse, parents, and those whose interests are affected by the will.
- 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.
If you plan to contest a Will based on the Testator’s lack of testamentary capacity, you will ultimately have to prove that one of those exceptions to the presumption of capacity applies.
Contact Los Angeles Probate Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about how to prove lack of testamentary capacity in California, contact the experienced Los Angeles probate attorneys at Schomer Law Group APCby calling (310) 337-7696 to schedule an appointment.
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