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Will challenges based on lack of testamentary capacity

Most California wills go through probate without any challenges. However, there are some grounds on which family members, heirs or others who believe they should have been included in the will can challenge them.

One of the most common reasons for a will challenge involves the decedent’s testamentary capacity. Under the law, people who have testamentary capacity are able to understand:

  • What a will and other estate documents mean
  • What it means to dispense their assets via the will and other documents
  • What property and other assets they have and their value
  • That they are using the will and other documents to distribute their assets
  • The people they’re expected to include as their beneficiaries

This capacity is usually challenged on the basis that the person who made the will (the testator) was suffering from dementia, senility or some other condition that impacted that person’s ability to understand the consequences of his or her decisions. Alleged substance abuse may also be a reason to challenge a person’s testamentary capacity.

Sometimes claims of lack of testamentary capacity involve allegations of undue influence on the testator. A family member, for example, may claim that an elderly person was persuaded by a caretaker, new spouse or someone who found their way into the person’s life near the end to change their will to leave money to them rather than their family members. The person challenging the will may argue that the testator wasn’t aware of what he or she was doing or perhaps felt intimidated or threatened into making the changes.

The prospect of challenging a will or other estate documents can be expensive, lengthy and stressful. It has the potential to cause conflict in a grieving family.

However, if you believe that a loved one’s will or any part of the estate plan doesn’t reflect his or her wishes and intentions, you will need to weigh both sides to determine your best course of action.

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