When someone decides to make and sign a will, he or she must have capacity as defined by the law. Without capacity, the will may not stand up in court or act to distribute the person’s property.
What Is Capacity?
The term “capacity” refers to testamentary capacity, or the mental ability to make a will. In California, a person making a will (a “testator”) has capacity if he or she can:
- Understand the nature of the testamentary act;
- Understand and recollect the nature and situation of his or her property; and
- Remember and understand his or her relations to immediate family members and those whose interests are affected by the will.
Cal. Probate Code § 6100.5. In other words, someone who has a serious mental disability, who is heavily medicated, or who is on his or her deathbed may not have capacity. This is not always true, and whether someone has capacity depends greatly on the specific circumstances.
Why Does Capacity Matter for Making Wills?
Having capacity is extremely important for someone making a will. While the issue may not come up at the time, relatives could contest the will after the person’s death. By asserting that the testator did not have capacity, they could tie up the will in probate court for months, if not years. They might even succeed in getting the court to disregard the will. In that case, an older will would take effect or the testator’s property would be distributed by the order of intestate succession.
If you know that a relative is not doing well but wants to make a will, tread carefully. You or your relative may want to seek legal advice about capacity to hopefully avoid a will contest later. People who clearly do not have capacity may need to seek conservatorships. During this process, a court appoints someone to represent the incapacitated person’s interests.
But the line between testamentary capacity and lack of capacity is thin. Moreover, people wanting to sign other documents besides wills might lack capacity to do so – the legal standard is different than it is for wills. To sign contracts or make other decisions, you must be able to communicate, understand and appreciate the rights, duties and responsibilities created or affected by his or her decision, the probable consequences, and the significant risks, benefits, and reasonable alternatives. Cal. Probate Code § 812. This is a higher standard, and some people making their wills might have testamentary capacity but not capacity to contract. Speak to a local estate planning lawyer to learn more.
Planning your estate? Look to Janet Brewer, Esq. for thorough and thoughtful estate planning advice. Janet’s more than 20 years of legal experience will give you confidence and peace of mind. To schedule a “Get Acquainted” meeting, visit Janet's website or call her office at (650) 469-8206.
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