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Does your loved one have the capacity to make a will?

If your loved one wishes to make or change a California will, you need to be aware of the possibility of diminished capacity issues. As explained by the Orange County Bar, legal mental capacity is different than general mental capacity.

Your loved one’s legal mental capacity to make or change his or her will is called testamentary capacity. Per California Probate Code Section 6100 5(a)(1), testamentary capacity consists of the following:

  • An understanding that (s)he is making or changing his or her will
  • An understanding of the nature and extent of his or her property
  • An understanding of who his or her relatives are and how the will or changes thereto affects them

While no single indicator exists for diminished legal mental capacity, the following three factors raise red flags:

  1. Age
  2. Illness
  3. Undue influence

Age

If your loved one is one of California’s 4.8 million senior citizens, (s)he stands a better chance of having diminished legal mental capacity, especially if (s)he relies on you or others to help with his or her finances, financial decisions, buying decisions, etc. The more help (s)he needs, the more the likelihood exists that his or her mental capabilities may be deteriorating.

Illness

Unfortunately, age brings on illnesses and conditions such as Alzheimer’s disease and dementia. Per the Alzheimer’s Association, over 588,000 Americans suffer from this disease today and that number is expected to double by 2030. It may surprise you to learn, however, that even if your loved one has early stage Alzheimer’s or dementia, this does not necessarily mean that (s)he lacks the necessary legal mental capacity to make or change his or her will. As long as (s)he fully understands the three issues listed above, (s)he can make a valid will or validly make changes to his or her existing will.

Undue influence

Undue influence becomes more of an issue the older your loved one becomes and the more assistance and/or care (s)he requires. As you may know, undue influence occurs when someone, stereotypically an adult child or paid caregiver, exerts so much influence on a person that, at best, the line between his or her own free will and that of the child or caregiver becomes blurred. In terms of a will, a large bequest by your loved one to the child or caregiver in question constitutes a serious diminished capacity red flag, especially if the bequest is out of proportion to the ones made to his or her other heirs.

This is educational information and not intended as legal advice.

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