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What is testamentary capacity?

In order to make a valid Last Will and Testament in California, you must have the testamentary capacity to do so. As the Orange County Bar explains, testamentary capacity, i.e., legal mental capacity, and general mental capacity are defined differently

Under California Probate Code Section 6100 5(a)(1), your testamentary capacity to make a valid will means you understand the following four things:

  1. The fact that you are making or changing your will
  2. The nature and extent of your property and assets
  3. The people who are your relatives and therefore your natural and expected heirs
  4. The way in which your will or your changes to a previous one will impact your relatives

Diminished testamentary capacity factors

Determining diminished testamentary capacity is not an easy undertaking. It usually, however, involves one of the following:

  • Age
  • Illness
  • Undue influence

If you are elderly and reliant upon others for help in making your financial and other decisions at the time you make your will, this could be an indication of your decreased testamentary capacity. Suffering from certain types of illnesses likewise could indicate diminished capacity. It may surprise you to learn, however, that even if you have been diagnosed with the onset of Alzheimer’s disease or dementia, this does not, in and of itself, make for diminished testamentary capacity. As long as you understand the four things listed above, you have sufficient testamentary capacity to make your Last Will and Testament.

The issue of undue influence arises if you rely heavily on one particular person, be it a family member or an in-home caregiver, to provide you with medical and/or financial care. The concept of undue influence has to do with the very real possibility that this caregiver could influence your decisions too much, substituting his or her free will for yours. If this situation exists, you lack the testamentary capacity to make a will.

This is general educational information and not intended to provide legal advice.

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