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Mental competency to make a California will (CA Probate Code section 6100.5)

I’ve made several posts in the past about California wills. There’s the one about how to make a will, how¬† to disinherit your children and your spouse, as well as what happens to your will when you get divorced in California. In this post, I’m going to go over something a bit more fundamental when you make a will: is the person mentally competent to even make a will?

If a person is going to make a will, I think they should make it really early. Making a will in your 30s or 40s isn’t too soon at all, I think. Human nature being what it is, though, many people wait until the last minute to make a will. By this time, they might be suffering from a variety of health problems, including but not limited to dementia.

The question of ‘When is someone mentally competent to make a will?” is answered in California in section 6100.5 of the California Probate Code. The statute is phrased — for clarity and ease of understanding purposes, I’m sure — in the negative. Two criteria are listed and if either of those criteria are satisfied, mental competency does not exist. Under section 6111(b)(2) of the California Probate Code, a will is invalid if it was made at a time when the person making it (i.e. the testator) did not have mental competency.

The criteria to demonstrate a lack of mental competency under Section 6100.5 are as follows:

  • The person does not understand the nature of the testamentary act. For example, the person needs to understand that they are making a will and not a recipe for blueberry muffins;
  • The person does not understand and recall the nature and situation of their property. In other words, the person does not understand what property they have.
  • The person does not remember and understand their relationship to their spouse, parents, children, relatives, friends and other heirs. In other words, the person does not know who their relatives, friends, etc are.
  • The person does not understand what effects the will they are making will have.

Again, if any one of these criteria are satisfied, the person is not mentally competent to make a will and any such will they make is invalid. If proven, any one of these 4 criteria would also invalidate any amendment or change to an existing will the person made. Knowing this might be useful in a situation where, for instance, an elderly person — possibly with dementia or Alzheimers — made a change to their will just before they died which just happened to cut out all of the person’s heirs and other relatives in favor of the person’s much younger spouse who many suspect was just after the person’s money all along.

If any of the above criteria can be proven, challenging the validity of a will can be quite complicated both in terms of the court procedure and process involved as well any provisions within the will itself, such as a No-Contest clause under sections 21310 to 21315 of the California Probate Code. My usual blog post disclaimer definitely applies here: As always, I hope the above post was helpful, but it is not meant to be a comprehensive or exhaustive discussion of California wills and mental competency. If you have a situation involving a will possibly made by someone who was not competent to do so, I encourage you to find a lawyer in your area with whom you can discuss the intricacies of your case.

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Andy Chen

Andy I. Chen is a lawyer licensed to practice law in California and New York. Andy maintains offices in Los Altos, California and Modesto, California. Under the New York Court of Appeals' 2015 decision in Schoenefeld v. State of New York, Andy does not accept cases from those in New York state. He does, however, know many lawyers in New York state and would be happy to make a referral.

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