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Lack of Testamentary Capacity

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There are two alternative ‘tests’ for testamentary incapacity:

General mental incapacity:

A person lacks testamentary capacity if, at the time the will is executed, he or she does not have sufficient mental capacity to:

  • Understand the nature of the testamentary act (i.e., that by executing the will, he or she was effectively disposing of property at death);
  • Understand and recollect the nature and situation of his or her property; and
  • Remember and understand his or her relationship to living descendants, spouse, and parents, and those whose interests are affected by the will (often referred to as ‘the natural objects of one’s bounty’).

Mental disorder:

Alternatively, testamentary incapacity may be shown by evidence that, at the time the will was executed, testator suffered from a mental disorder with symptoms including delusions or hallucinations, which resulted in devising his or her property in a way which, except for the delusions or hallucinations, he or she would not have done.


Again, the testator’s competence is judged as of the point in time when the will was executed. Evidence of his or her general mental condition, or of delusions or hallucinations, at other points in time is not determinative; at best, such facts are only circumstantial evidence of capacity or incapacity at the time of execution.

The issue is one of fact for the trial court to determine. Evidence typically takes the form of:

Testimony from subscribing witnesses:

The opinions of subscribing witnesses are usually given great weight, since the subscribing witnesses were present when the will was signed or acknowledged and presumably were aware of the testator’s capacity at that time.

Testimony from family and close friends:

Having ‘intimate acquaintance’ with the testator, his or her family and friends may also offer opinion testimony.

Attorney testimony:

Likewise, the attorney who drafted the will may be able to offer a credible opinion, since he or she will have had personal knowledge of the testator’s wishes and general abilities and demeanor when the will was executed

Expert opinion:

Psychiatric and other medical experts who may have evaluated, diagnosed, or treated the testator may offer their expert opinions on his or her competency. (E.g., psychiatric testimony or medical evaluation reports.)

Our aggressive and reputable attorneys at the Law offices of Woosley & Porter represent clients throughout California in will and trust contests in which the will or trust was obtained without the requisite mental capacity. If you believe that you have been the victim of such conduct.

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