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By William Starr, Esq.

Determining the mental capacity of an individual can be a tricky endeavor.  That is why experienced doctors, psychiatrists, and psychologists are necessary to diagnose and document a mental disorder.  However, in making a will or an estate, a different standard of mental capacity is used.

Testamentary capacity refers to a person’s ability to understand and execute a will or estate plan. As a general rule, a person of ordinarily intelligence over the age of eighteen is deemed competent to make a will.  In order to meet the testamentary capacity standard the person must be: (1) able to understand that they are signing a will or estate plan; (2) identify the property to be distributed; and (3), and identify and understand who is affected by the will, such as who the beneficiaries are. Generally, these are simple burdens to meet and a person to be mentally deficient in the everyday sense of the term may be found to have testamentary capacity to execute a will or estate plan.  Therefore, just because an individual is residing in a hospital, nursing home, or skilled nursing facility, does not automatically mean they are incapable of making a will.  However, because a person’s residence in one of those facilities may denote ill health, it could expose the will to challenges in court.

For instance, if the testator of a will suffers from paranoid delusions, he or she may make changes to a testamentary document based on beliefs that have no basis in reality. If a disinherited heir can show that a testator suffered from such insane delusions when the changes were made, he or she can have the will invalidated. Similarly a person suffering from dementia or Alzheimer’s disease may be declared unfit to make a will. If a person suffers from a mental or physical disability that prevents them from understanding that a will is an instrument that is meant to direct how assets are to be distributed in the event of his or her death, that person is not capable of executing a valid will.

It is not entirely uncommon that disinherited heirs complain that a caretaker or a new acquaintance brainwashed the testator into changing his or her will. This is not an accusation of incapacity to make the will, but rather a claim of undue influence. If the third party suggested making the changes, if the third party threatened to withhold care if the will was not changed, or if the third party did anything at all to produce a will that would not be the testator’s intent absent that influence, the will may be set aside for undue influence. Regardless of the reason for the challenge, these determinations will only be made after the testator’s death if the will is presented to a court and challenged. For this reason, it is especially important for the testator to be as thorough as possible in making an estate plan and making sure that any changes are made with the assistance of an experienced estate planning attorney.

Contact the experienced Estate Planning attorneys at Schneiders & Associates, LLP to schedule a no charge consultation for your Estate Planning matters.

About the Author
Theodore J. Schneider practices in the areas of business and corporate transactions, employment law counseling, municipal and public law, real estate and land use, and homeowner associations. Ted began his legal career in 2002 when he joined the Los Angeles office of Gibson, Dunn & Crutcher, L.L.P. before relocating to Ventura County to join his father in practice.