Can an Incompetent Person Change Their Will? When Does Someone Lack the Capacity to Create or Change Their Will or Trust?

We regularly litigate cases involving allegations that family members or other caregivers convinced an elder with dementia to change their will or trust in order to cut someone out or get a bigger share for themselves. A will or trust that has been changed can, however, often be reversed and assets can be recovered if you can show that the person should not have been allowed to make those changes. Whether you can void a will or trust for lack of capacity depends on the relevant evidence you can show in court.

It is often times, difficult to successfully challenge a will or trust for lack of capacity. In fact, California law presumes that a person has the ability to make decisions and sign documents, including contracts, wills, trusts or other documents such as advanced health care directives and durable powers of attorney. California Civil Code §1556 states that “all persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights.” Probate Code §810 provides in part that “there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.” Therefore, if you think someone does not have the legal capacity to sign their will or trust documents, the burden of proof is on you to show that. 

California law has established separate standards covering what mental capacity is needed to create a will or trust.  For a will, the standard is governed by California Probate Code § 6100.5, which provides that in order to void what appears to be a valid will the person challenging the document needs to show that the signatory did not (1) understand that they were signing something to give their property away after their death, (2) understand and remember generally what they own, or (3) remember and understand their relationships to their relatives and other people who are their heirs. In other words, the person must understand that they are signing a will and comprehend its purpose. Alternatively, one can successfully challenge a will by showing that at the time of signing they had a mental disorder which caused delusions or hallucinations that caused them to create or sign a will which gave away their property in a way they would not otherwise have done.

A trust, however, is considered a more complex document, therefore it can be slightly easier to prove a lack of capacity. Courts look to Probate Code §§810-812 regarding the capacity to sign a trust. To prove someone lacked capacity you would need to show that the person didn’t understand: (1) the rights, duties and responsibilities created or affected by the decision; (2) the probable consequences for them and others affected by signing the document; and (3) the risks, benefits, and alternatives to what is being done. This differs from the capacity to create a will since the person creating a will doesn’t need to understand the exact mechanics of the will, just that it is making grants of property to be put into effect after their death. By contrast, in creating a trust, a person needs to understand the mechanics of what they are doing, which is in effect giving legal control of their property to a trust, even if they are controlling that trust.

A variety of evidence is used in court to determine whether a person did or did not have the required testamentary capacity to create a will or trust. Expert testimony from doctors trained as geriatricians or doctors who have actually treated the person, medical records, eyewitness testimony of people who witnessed the document signing, videos showing the actual signing or general recordings of the person around that time period might all be considered. Any written material by the person in question from that same time period can be helpful as well.

Contrary to what many people believe, a diagnosis of dementia or other cognitive impairment does not definitively mean that someone cannot execute a will or trust. California Probate Code §811(d) specifically says that such people may still have capacity. For instance, the case concerning Sumner Redstone and his estimated $5 billion estate has been making its way through the courts for the past few years.  Indeed, in January 2019, a judge ruled that Redstone did have capacity to make changes to his 2016 estate plan, despite expert testimony that indicated he was suffering from dementia around that time. The judge pointed out that despite the diagnosis, Redstone clearly knew how much money he had when questioned by a doctor. If you are in a situation where you have concerns about the capacity of someone signing a will or trust, do not simply rely on your instincts or any potential diagnosis.  If you think someone may have been taken advantage of and did not have legal capacity to sign a will or trust, or someone is challenging a will or trust you think is valid, it is best to consult with an independent lawyer who has experience litigating these matters. To show how idiosyncratic the law in this area is, the lawyer who drafted the will or trust may not be able to litigate a dispute about capacity because they may end up being a witness in the case.