Living in Los Angeles where I practice probate law as an attorney, I am often asked about a person’s competency to make a will. The answer is straight forward as described in California Probate Code Section 6100.5. It says:
(a) An individual is not mentally competent to make a will if at the time of making the will either of the following is true:
(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.
(b) Nothing in this section supersedes existing law relating to the admissibility of evidence to prove the existence of mental incompetence or mental disorders.
(c) Notwithstanding subdivision (a), a conservator may make a will on behalf of a conservatee if the conservator has been so authorized by a court order pursuant to Section 2580.
California Probate Code Section 810 deals with findings and declarations; capabilities of persons with mental or physical disorders; judicial determination; evidence.
California Probate Code Section 811 deals with deficits in mental functions.
California Probate Code Section 812 deals with the capacity to make decisions.
California Probate Code Section 813 deals with the capacity to give informed consent to proposed medical treatment; judicial determination.
Do you have questions on capacity and other estate planning and probate issues? Call Mitchell A. Port, Esq.