Invalidating a will due to incapacity
Testamentary incapacity is a popular and often successful weapon from which an attorney can invalidate an otherwise valid will. However, in order to utilize this powerful tool, an attorney must overcome a presumption and a daunting burden of proof requirement. This article will describe what is required to invalidate a will in California on the grounds of incapacity.
Who has to proof lack of testamentary capacity?
A will may be invalidated if executed by a testator lacking “testamentary capacity.” However, under the California Probate Code there exists a presumption that any adult over the age of 18 of “sound mind” has “capacity” (e.g. is competent) to create a will. (Prob.C. §6100(a)) In other words, the testator’s mental capacity is presumed and accordingly should an attorney wish to invalidate such a will on the grounds of incapacity they will have the burden of proving by a preponderance of the evidence that the testator was not mentally competent when the will was executed. (Evidence Code §522; Estate of Mann (1986) 184 CA3d 593, 602; Estate of Goetz (1967) 253 CA2d 107)
How can testamentary incapacity be proved?
Under the California Probate Code, there are two alternative “tests” for proving testamentary incapacity. Pursuant to the first test, mental incapacity can be proved by showing that a the time the will was executed he or she did not have sufficient mental capacity to: 1) Understand the nature of the testamentary act; 2) understand and recollect the nature and situation of his or her property and 3) remember and understand his or her relationship with to living descendents, spouse, and partners, and those whose interests are affected by the will. (Prob.C. §6100.5(a) (1); Estate of Mann, supra, 184 CA3d at 602; see Estate of Smith (1926) 200 C152, 252) The second test requires that the attorney puts forward evidence that shows that at the time the will was executed the testator suffered from a mental disorder with symptoms including delusions, hallucinations, which resulted in devising his or her property in a way which, except for the delusion or hallucinations, he or she would not have done. (Prob.C. §6100.5(a)(2); Estate of Perkins (1925) 195 C 699, 703-704; Goodman v. Zimmerman (1994) 24 CA4th 1666, 1678-1679)
An attorney can overcome the aforementioned burdens of proof by putting forward evidence regarding the testator’s mental capacity at the time the will was executed. Persuasive evidence may include testimony from subscribing witnesses, testimony from family and close friends, attorney (who drafted the will) testimony and expert opinions regarding the testator’s capacity at the time the will was executed.
Conclusions
In sum, an incapacity argument can be a strong tool for attorneys to invalidate an otherwise valid will, however in order to utilize this tool the attorney must overcome a strong burden of proof.