If somebody wants to write a will or trust, they must be of sound mind. In California, the law presumes that everyone has the mental capacity to make a will or found a trust. Consequently, anyone seeking to challenge the validity of such documents on mental health grounds must present compelling evidence. Mental capacity when creating a will

Mental Capacity in California 

California has its own rules for what makes a will valid or invalid. But when it comes to a person’s legal competency, the requirements are fairly simple:

  • The author must be at least 18 years of age
  • The author must be of sufficient mental capacity

Since California presumes that everyone has the mental capacity to make a will, the standard for defining sufficient mental capacity is low. For an individual to possess the prerequisite mental capacity to draft a list of their last wishes, they must:

  • Understand that they are creating a will
  • Understand which assets they own
  • Understand their relationship with the beneficiaries named in their will
  • Not suffer from any significant mental disorders, especially those which induce or are characterized by delusions and/or hallucinations

Mental Capacity for Trusts

California holds more stringent requirements for persons who want to establish a trust. While Californians wishing to pen a will need not understand the legal mechanics of the document, those seeking to establish or alter a trust must be cognizant of their decision or the probable impact of their decision.

The state Probate Code dictates that trustors must understand the following:

  • The rights, duties, and obligations created or otherwise affected by the conditions of their trust
  • The foreseeable or likely consequences for the trustor as well as all individuals who may be affected by their decision to establish or alter a trust
  • The risks, benefits, and contingencies of their decision or decisions

As with wills, anyone seeking to challenge a trustor’s mental capacity must demonstrate that the trustor’s physical or mental condition interferes with their ability to understand the basic mechanics of their trust. Even people who experience hallucinations and delusions can still legally write a will, provided their condition does not interfere with their ability to understand their relationship to their assets and beneficiaries.            

If You’re Preparing a Challenge, Don’t Do it Alone

Since California holds the presumption that everybody has the mental capacity to write a will or alter a trust, anyone seeking to prove otherwise bears the burden of proof. If you have been left out of a will or your inheritance has been reduced by a loved one who is no longer capable of making informed or responsible decisions, you should contact an experienced estate planning attorney to discuss your options. Send us a message online, or call us today, and we will review the unique circumstances of your case.


Philip J. Kavesh
Nationally recognized attorney helping clients with customized estate planning guidance for over 40 years.
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