Proving Lack of Capacity: Contesting A Will Or Trust For Lack Of What?

A common way to challenge the validity of a Will while in the process of distributing the deceased person’s estate is to invoke the testator’s lack of capacity at the time the Will was executed. Basically, a person lacks testamentary capacity if he or she fails to:

• Remember and understand the relationship with relatives, such as a spouse, parents, or living descendants
• Understand and remember the nature and situation of his or her property
• Understand the nature and effects of the Will

Heirs who watched a parent’s mental heath rapidly decline in their last years of life, tend to declare their parent’s incapacity if they are unhappy with their position in the will.

How is lack of capacity established?

A dementing illness, such as Alzheimer’s disease, may not by itself be sufficient to invalidate the testator’s Will. Degenerative dementia is a gradual process that affects brain functions as the disease progresses.

On the other hand, a testator may have suffered a stroke rendering him unable to understand anything spoken or read but still be perfectly capable of signing documents.

A neuropsychologist needs to carefully examine other elements of the testator’s mental health. The point is to analyze behavior and abilities with respect to brain functioning and pathology. This analysis is done when the testator is still alive or during an autopsy.

Talk to California will contest and trust litigation attorney Scott Grossman about your situation, goals, and questions. Call us at (888) 443-6590 or (888) 443-6590 for your FREE 30 minute telephone consultation.