Questions on mental incompetence when contesting will legitimacy

What are the requirements for a will to be legitimate?

There are only two requirements for a will to be legitimate in the state of California. The individual making the will:

• Must be at least eighteen years of age
• Must be of sound mind

California law automatically presumes that anyone of legal age who has drafted and executed (signed, witnessed, and notarized) a will to be mentally competent or “of sound mind.”

A mentally competent person can divide up an estate however he or she wants.

None of his or her relatives are legally entitled to an inheritance, nor is there any obligation to prioritize one beneficiary over another.

However, if the testator (individual making the will) is not mentally competent at the time of drafting or execution, then one can take the California will to court.

What constitutes mental incompetence?

A mentally incompetent testator is someone who, at the time of making or signing a will:

• Doesn’t understand what it means to make a will
• Can’t remember and understand what assets or property he or she currently owns
• Can’t remember and understand his or her relationship to people impacted by the will
• Suffers from delusions, hallucinations, or other cognitive problems that dramatically alters property distribution in the will

Essentially, if individuals didn’t understand they were making or signing a will, they weren’t mentally competent

Although, when people are elderly or in poor health, they may forget details about their situation or the people in their lives. Thus, forgetting names of grandchildren or not remembering every account in their name doesn’t demonstrate mental incompetence. Perfect memory is not a requirement for sound mind.

Yet, there are definite red flags that indicate there was a significant incompetence issue

Potential Red Flags

• Forgetting they own the house they are currently living in.
• Thinking a deceased spouse is still alive.
• Significant changes to will made shortly before his or her death.

These are all strong indications that mental incompetence is an issue.

We’ve seen cases where a testator suffering from a condition with a strong component of dementia, such as Alzheimer’s, will make abrupt changes to an estate plan that don’t seem in line with previous drafts. Often, these changes will favor one individual over others.

Often, showing a previous draft of the will along with evidence that strongly demonstrates the testator suffered from mental competence issues will help invalidate the newer will.

If you have questions about a loved one’s mental competence at the time he or she signed the will, it is in your best interests to discuss your case with a San Diego probate lawyer.  The Grossman Law Firm offers Riverside will contests, probate, trust administration, and trust litigation services. For a free consultation with one of our attorneys, call today at 888-443-6590, or click here to contact us

Additionally, be sure to request your copy of The Ultimate Guide to California Trust and Probate Litigation. This must-read book by Scott Grossman is available to you FREE