Law Office of Stephen W. Penn and Associates

What is testamentary capacity?

When you set about instructing your attorney on how to draft your California last will and testament, you must possess the necessary testamentary capacity to do so. The word testamentary relates to anything having to do with a will. Therefore, as explained by the Orange County Bar Association, testamentary capacity means the mental capacity you need to have in order to make a valid will.

Per Section 6100 5(a)(1) of the California Probate Code, you must understand the following four things in order to possess the sufficient testamentary capacity to make a valid will:

  1. That you are in fact making or changing your will
  2. That you know the extent and nature of the property and assets you own
  3. That you know who your relatives are that make up your "natural heirs," such as your spouse, children, grandchildren, etc.
  4. That you know how your will or the changes you are making to it will affect these people

Factors impacting testamentary capacity

Obviously creating a will is a serious thing and you should think long and carefully before drafting and executing yours. Remember that no law requires that you provide equally for your natural heirs in your will. However, if you make greatly disparate bequests to them, or if you disinherit one or more of them completely, you run a greater risk of someone challenging your will after your death in an attempt to get what (s)he believes is rightfully his or hers. You face the same risk if you leave an unusually large bequest to a nonfamily member.

If a will challenge occurs, the person challenging your will likely will allege either that you lacked the testamentary capacity to make your will or that you were under someone's undue influence at the time you made it. In situations such as these, the court will look to your age and the status of your physical and mental health when you made and executed your will. Should the court find that one or more of these factors made you heavily reliant on someone else, such as one of your adult children or a live-in caregiver, to help you make financial and other important decisions, it could determine that you lacked the necessary testamentary capacity to make or change your will and set aside part or all of it, thereby redistributing your property and assets.

We present this information for educational purposes only, not to provide legal advice.

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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012