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Understanding Testamentary Capacity to Create a Will or a Trust

Posted by Maria N. Jonsson | Sep 28, 2023 | 0 Comments

Because the topic of death and dying is so morbid and stressful to contemplate, some folks tend to procrastinate preparing a Power of Attorney, a Health Directive, a Will and/or a Living Trust until much later in life, and sometimes, until they delay until last minute or only after experiencing a major health scare.  At such time, a person may or may not have the testamentary capacity to fulfill the requirements of a valid Will or Trust. Or, they may be more susceptible to undue influence, fraud, and duress, which would likely invalidate the testamentary document. Challenges to testamentary capacity make a Will or a Trust vulnerable to contest. 

At the Law Offices of Maria N. Jonsson, PC, our estate planning attorney in Marina del Rey believes in being proactive and creating a comprehensive estate plan well in advance of any question of testamentary capacity. We want to avoid risks and mistakes so that probate can be avoided altogether. Contact us either online or at tel. 424-383-8445 to schedule a in-depth strategy session and learn more. In the meantime, here's what you need to know about testamentary capacity.

Testamentary Capacity as a Requirement of a Valid Will in California

To make a legally valid Will or Trust, the testator or trust settlor must have testamentary capacity. A four-prong test guides us on how testamentary capacity may be determined: 

  1. Did the testator appreciate the nature and consequences of creating the Will or Trust?
  2. Did the testator know the extent and nature of their property?
  3. Did the testator know the relationship between the testator and the proposed beneficiaries?
  4. Was the testator unaffected by any disorder of the mind or insane delusion?

Capacity to Create or Amend a Trust

Notably, since Trusts are contracts, a higher level of capacity known as "capacity to contract" is required to create or amend a Trust, compared to the basic level of testamentary capacity needed to only create a Will. The capacity to contract requires a clear understanding of the nature and the legal effect and consequences of the provisions in the documents.

It is presumed that when a Will is offered to probate, it is valid. That presumption, however, is rebuttable and so, a Will can be contested. The same logic applies to validity of a living Trust or subsequent Trust Amendments, especially when Trust Amendments make sweeping changes to a trust that has been in effect for many years. 

Challenging a Will or a Trust based on testamentary capacity is very common. The challenger has the burden to show the testator lacked capacity. If it is shown that the testator did not have capacity, then the document can be deemed invalid and will be disregarded.

Distinguishing the Difference between Testamentary Capacity and Testamentary Intent in California

Testamentary capacity is directly linked to another requirement of a valid Will: testamentary intent. Testamentary intent considers whether the testator, at the time the Will was executed, subjectively intended the contents of the Will. Here, too, there is a presumption that the testator is familiar with and knows what the contents of the Will or Trust. Intent comes into question when there are allegations of:

  • Undue influence, where another person improperly substitutes their wants in place of the testator's intent
  • Fraud, when a person knowingly executes a Will or a Trust but its terms are based on material misrepresentation of facts made to the testator by someone who will benefit from the misrepresentation
  • Mistake, where the testator intended to execute their Will or Trust but made a mistake and signed another document (e.g., another draft of the Will or Trust that no longer represents the testator's intention)

If it shows that the testator lacked testamentary intent, the Will or Trust / Trust Amendment will be invalidated.

In sum, testamentary capacity is about the testator's ability to understand the document they are signing, while testamentary intent is about the testator's intentions reflected properly in the Will or Trust.

Protect a Will or a Trust in California against Challenges Based on Lack of Testamentary Capacity

Testators must be very clear that they possess testamentary capacity, especially when the Will or Trust / Trust Amendment is created at a later stage in life, when medical conditions affecting cognitive functions begin to surface. Testators can take an extra step to forestall a contest by obtaining Doctor's Letters of Capacity at a point in time right before and right after the creation of a Will, Trust or Trust Amendment. Obtaining a Certificate of Independent Review - a document signed by a second attorney who meets with the testator to review a draft of the Will / Trust / Trust Amendment and to confirm their testamentary intent - is a powerful document to fend off a contest. In addition, a good practice is to document one's testamentary wishes or reasons behind making a sweeping amendment to a Will or Trust - by way of a handwritten and signed letter, or a video explaining the circumstances precipitating the revisions. Such letter / video can be relied upon as extrinsic evidence to confirm the testamentary intent of the testator or trust settlor. In terms of drafting the documents, including a stand-along No Contest Clause in a Trust Amendment, and including powers of the Trustee to defend a Trust Amendment are techniques employed to assist a Trustee in defending against a contest.

Contact a Marina del Rey Trust Attorney for an In-Depth Consultation

A Last Will and Testament and/or a Living Trust or a Trust Amendment in California that reflects your intentions and that can withstand a contest based on lack of testamentary capacity (or any other ground) is the only way to safeguard your beneficiaries' rights and interests, and to keep them out of Probate Court. At the Law Offices of Maria N. Jonsson, PC, our trust and estate attorney will walk you through the process, listen to your wants and needs, and help you draft a smart, comprehensive Will or Trust. Contact us today either online or at 424-383-8445 to schedule an in-depth strategy session.

About the Author

Maria N. Jonsson

Founding Attorney and a Certified Specialist in Estate Planning, Trust & Probate Law by the State Bar of California Board of Legal Specialization


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Attorney Maria N. Jonsson, Esq. is a Certified Specialist in Estate Planning, Trust & Probate Law by the State Bar of California Board of Legal Specialization. The Law Offices of Maria N. Jonsson, PC is committed to providing a comprehensive and holistic analysis of your specific circumstances as they relate to Estate Planning, Probate and Trust Administration issues in California. Schedule a one-on-one discussion of your case with Attorney Jonsson directly.