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Did My Mom Have Capacity to Change Her Estate Plan?

Relationships change throughout a person’s life, and those changes are often accompanied by a new or updated estate plan.  Still, you may be surprised to learn of a significant modification to your parent’s will or trust during a period when his or her mental condition was declining, leading you to wonder: did my parent have capacity to do that? 

California’s Probate Code section 810 establishes a rebuttable resumption that all persons “have the capacity to make decisions and to be responsible for their acts or decisions.”  Thus, a person who has a mental or physical disorder may nevertheless be capable of executing a will or trust.  (Prob. Code § 811, subd. (b).)  Courts determine capacity with reference to a person’s functional ability to perform specific acts, not solely based upon a diagnosis of a mental or physical disorder.  (Prob. Code § 810, subd. (c).) 

The standard to execute a will, codicil, or uncomplicated trust is in Probate Code section 6100.5, which provides that a person has testamentary capacity if he or she can (i) understand the nature of the testamentary act, (ii) understand and recollect the nature and situation of the individual’s property, and (iii) remember and understand his or her relations to immediate family members and those whose interests are affected by the estate plan.  According to long-held California cases, this testamentary capacity is a lower standard than the ordinary capacity to transact business or establish complicated trusts.  Old age, forgetfulness, eccentricities, mental feebleness, or confusion at various times of a party making a will are not enough in themselves to warrant that the testator lacked mental capacity.  (Anderson v. Hunt (2011) 196 Cal.App.4th 722, 739.)  

The test for a complicated trust is similar, but different.  An individual lacks capacity to execute a complex estate plan if there is a correlation between a “deficient mental function” and the testamentary decision.  (See Prob. Code § 810; Lintz v. Lintz (2014) 222 Cal.App.4th 1346.)  To the extent that relevant mental functions significantly impair the person’s ability to understand and appreciate the consequences of her testamentary decisions, the court may consider the individual’s:

  1. alertness and attention, including the following:
    1. level of arousal or consciousness
    2. orientation to time, place, person, and situation
    3. Ability to attend and concentrate
  2.  information processing, including the following:
    1. Short- and long-term memory, including immediate recall
    2. ability to understand or communicate with others, either verbally or otherwise
    3. recognition of familiar objects and persons
    4. ability to understand and appreciate quantities
    5. ability to reason using abstract concepts
    6. ability to plan, organize, and carry out actions in one's own rational self-interest
    7. ability to reason logically
  3. thought processes, including the following:
    1. severely disorganized thinking
    2. hallucinations
    3. delusions
    4. uncontrollable, repetitive, or intrusive thoughts.

Again, any of these deficits in mental functions may be considered if it significantly impairs the person’s ability to understand and appreciate the consequences of his or her actions with regard to the decision in question.  For example, forgetfulness, or a lapse of memory is not sufficient in itself to establish lack of capacity.  However, if a lapse of memory is shown to have a direct bearing of the testamentary act, then it may be relevant in determining a person’s mental competency. 

Be aware that if you wish to contest the validity of a trust for lack of capacity (or, for that matter, other reasons including fraud, undue influence, elder abuse, forgery, or mistake), you must do so within 120 days of the date the notification by the trustee is served under California Probate Code Section 16061.7 or 60 days from the day that the terms of the trust are delivered pursuant to Probate Code section 1215, whichever is later.  Similarly, you can challenge a will immediately, however, once probate is opened, you only have 120 days to file a will contest.


Leila Sockolov is an associate in Berliner Cohen’s Litigation Group. Ms. Sockolov’s practice focuses on civil litigation. Her experience with corporate clients and individuals spans a variety of legal disputes, ranging from trade secrets litigation and unfair business practices, to torts and contract disputes, among others. She can be reached at or 408-286-5800.