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Lack of Capacity


Our Bay Area Probate Litigation Attorneys Bring Legal Challenges On Behalf Of Families

It breaks your heart when a loved one passes away and family members do not agree on whether the will or trust is valid. People can have differing opinions as to the deceased person’s state of mind when he or she executed the will or trust. This can lead to interfamilial fighting and probate court litigation. Our Bay Area probate litigation attorneys specialize in challenging and defending wills or trusts. Such cases may involve determining if the deceased person lacked the capacity to execute a valid will or trust.

Lack of Capacity to Execute a Valid Will or Trust

The term “testador” refers to the person who signs the will or trust. Additionally, “settlor” refers to the person who creates a trust.  To be a legally enforceable will or trust, the testator must have the mental capacity to understand:

  • The nature of the documents, which is that they distribute property to named beneficiaries upon the death of the testator.
  • The extent and approximate amount of property owned by the testator.
  • The relationships between the testator and family members or other beneficiaries.

To execute a valid trust, the settlor must have the present intent to create a trust, deliver property to the trust, and name beneficiaries and a trustee. The settlor’s purpose in creating the trust must also be legal. It also cannot be contrary to public policy.

A person does not have to be mentally ill or incompetent to lack the capacity to execute a valid will or trust. Elderly or ill individuals may have some days where they are completely lucid. Other times, on the other hand, they may be confused or suffering from delusions or hallucinations. The only requirement is that on the date and time the deceased executed the will or trust, all elements of testamentary intent were present.

Proving lack of capacity to invalidate a will or trust in probate court can be a complicated matter. Courts are reluctant to disregard the apparent intent of someone who is no longer alive to testify. The probate court may call upon family members, the drafter of the instrument, as well as expert witnesses, such as doctors and psychiatrists, to determine whether the deceased lacked the requisite mental capacity and intent.

Example of Lack of Capacity or Undue Influence

Often, individuals who lack the mental capacity to execute a valid will are especially susceptible to undue influence by relatives, caretakers or other individuals. Consider the following common hypothetical:

Mary is old and weak. She has periods of mental clarity, and periods of confusion. Her niece, Donna, lives nearby. Donna tells Mary that her children who live far away do not really love her, do not visit her and only are after her money. Furthermore, Donna isolates Mary from others. For example, she keeps other from visiting and does not relay their messages and calls. Then Donna talks Mary into writing a will or trust leaving Mary’s entire estate to her.

Is the will valid? Did Mary lack the capacity to execute a valid will? Did Donna exert undue influence upon her? These are factual questions for a judge or jury. More information is necessary regarding Mary’s mental capacity on the date she executed the will. However, Donna’s behaviors in isolating Mary, not relaying messages and pressuring her, are evidence that Donna exerted undue influence upon Mary.

An Experienced Probate Attorney is Necessary for Contested Wills and Trusts

Many attorneys  practice California probate law. However, only an experienced probate litigator is equipped to bring complex legal challenges to a will or trust when objecting based on lack of capacity. Probate lawyer Charles Triay is the founder of the Triay Law Office. He has been specializing in contested wills and trusts in probate court for over 30 years. Unlike other law firms, the Triay Law Office gives clients the option of paying attorney fees on an hourly or contingency basis. Please contact our Bay Area probate litigation lawyers to assess your situation. We can help you to determine if an objection based on lack of capacity is the right legal path for your family.


FAQ Learn More About Probate Litigation

  • Probate is the legal process of administering a deceased person’s last will and testament or according to intestate law. Certain trusts only go into effect upon the death of the testator, and may therefore be part of a probate administration. California probate courts oversee probate administration and probate litigation.

  • Probate litigation is the term for a lawsuit when a party, such as an heir, beneficiary, creditor, third party or omitted spouse contests a will. Probate litigation also includes charges against fiduciaries of trusts or estates, or creditors’ claims against an estate.

  • There are several different reasons for contesting a will. For example, claims of undue influence and lack of capacity are common causes for probate litigation. Some individuals may argue that the will is defective, or that the estate trustee is breaching a fiduciary duty. If you are an omitted spouse or if your spouse leaves you less than required by California law, you may have a claim against the estate as part of your spousal rights.

  • A fiduciary duty is the obligation to act honestly, fairly and in good faith when handling the deceased person’s estate. There are multiple fiduciary duties that executors, administrators and trustees are legally required to follow, including keeping proper accountings of all investments, as well as money going in and out of the trust or estate. Violation of this duty or poor performance in administrating the estate may result in legal action by the estate’s beneficiaries.

  • Just as in all types of civil litigation, the law allows you to represent yourself in a probate proceeding. However, we strongly advise having a seasoned probate litigation lawyer handle your case to ensure that California probate law upholds your best interests.
  • Even in death, a person is liable for their debts. For example, creditors may bring claims against a person’s estate after their death to receive payment.

  • A codicil is a document that makes small changes to the terms of a last will and testament. An individual may use codicils when they want to amend their last wishes without having to create an entirely new will. A codicil will only be legally valid and enforceable if executed in the same manner as a will. Codicils are particularly useful upon remarriage, additional children born, or new property acquired by an estate.

  • If a person dies without a will, then California intestacy laws will dictate the division of their estates to the heirs at law. These laws will then distribute property and assets depending on the marital status, number of children and surviving relatives of the deceased individual.