Trust and Estate – Probate and Trust Disputes – Part 2

Probate and Trust Disputes Part 2: Proving An Unsound Mind – Nuts and Bolts

By Randy Ortlieb and Jordan Wager

Sometimes after the death of a relative, an heir receives less or more than expected from the estate. When this occurs, the disappointed heir often asks, “What can I do to fix this?” The most common answer to that question is to become a contestant of the will and attack it by asserting the testator lacked testamentary capacity. This article explores what the law requires to prove lack of testamentary capacity to make a will.  A similar evaluation but with added analysis of whether the trustor had capacity to enter into a contract, should be applied when a dispute arises as to the creation of a trust estate. In this article, all references to “Probate Code” refer to the California Probate Code. As experienced Trust and Estate Attorneys at Palomar Law Group, we offer a complimentary initial consultation to individuals involved in inheritance disputes. Call (760) 747-2202 to schedule an appointment.

Presumption of Capacity and the Right to Disinherit

The law poses two major hurdles to a capacity contest:

First, every testator is presumed to have capacity, and the contestant has the burden of proving otherwise.

Probate Code § 810 establishes a rebuttable presumption that “all persons have the capacity to make decisions and to be responsible for their acts or decisions,” and it recognizes that persons with mental or physical disorders “may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.” Given this presumption, a will is presumed valid.

To overcome this presumption, the contestant must “prove affirmatively, and by a preponderance of the evidence, that the testator [lacked testamentary capacity] at the time of the execution of the will.” In re White’s Estate (1954) 128 Cal. App. 2d 659, 666.

Second, in California, there is no “right to inherit” from a testator, no matter what the relation between the testator and the heir is.

“Testators have a right to completely disinherit nearly anyone.  Munn v. Briggs (2010) 185 Cal. App. 4th 578, 586.  Therefore, the contestant’s assertion that a testator made a substantial contribution to a charity or to someone outside the family, standing alone, does not help the contestant meet the burden of proving testamentary incapacity.

How to Prove a Deficit

As discussed in Part 1 of this article, a contestant asserting lack of capacity must prove the person in question had a deficit in one or more of four categories of mental functions.

A contestant must show the frequency, severity, and duration of periods of impairment of at least one of the mental functions categories.  Probate Code § 811 contains a list of deficits that impair mental function and therefore have the potential to adversely affect creation of legally binding documents, including a will (or a trust):

  • Alertness and attention
  • Low levels of arousal or consciousness;
  • Disorientation to time, place, person, and situation; or
  • Inability to concentrate;

Information processing;

Decreased short and long term memory, including immediate recall;

Inability to understand or communicate with others, either verbally or otherwise;

Decreased levels of recognition of familiar objects and familiar persons;

Inability to understand and appreciate quantities;

Inability to reason using abstract concepts;

Inability to plan, organize, and carry out actions in one’s own rational self-interest; or

Inability to reason logically.

  • Thought processes
  • Severely disorganized thinking;
  • Hallucination;
  • Delusions; or
  • Uncontrollable, repetitive, or intrusive thoughts.

Ability to modulate affect

Pervasive and persistent or recurrent state of one or more of the following that is inappropriate in degree to the individual’s circumstances:

  • Euphoria;
  • Anger;
  • Anxiety;
  • Fear;
  • Panic;
  • Depression;
  • Hopelessness or despair;
  • Helplessness;
  • Apathy; or
  • Indifference

A deficit in at least one of these areas, together with a showing that the deficit significantly impaired the person’s ability to understand the consequences of executing the document, are required in order to support a finding of incapacity.  Probate Code § 811(a) and (b).

The Struggle to Show Significant Impairment

A contestant may not satisfy his burden by merely showing a deficit in one or more of the aforementioned categories; such deficit must constitute “significant impairment.” Cal. Probate Code § 811(b). The second step of proving incapacity is for the contestant to show the deficit, by itself or in combination with another deficit, caused a mistaken transfer of rights.  In other words, the contestant must prove that but for the deficit, the document would not have been signed.

Example of NO significant impairment:

The son of a testator contested the will on the basis that his father left him nothing because of the testator’s delusion that his son was stealing from him. Although the court found that there was evidence the delusion existed, the will was still upheld as valid. The delusion did not cause any mistake in the will because there was evidence that the contestant would have been written out of the will even if the delusion did not exist (e.g. the contestant had put his father in a retirement home that his father detested). See Dougherty v. Rubenstein (2007) 914 A.2d 184, 293-94.

Timing: When is Incapacity Relevant?

Finally, in addition to the foregoing, the contestant must also prove that the testator suffered significantly from the deficit at the time of the creation of the will. Even if a contestant proves the testator suffered from a sufficient deficit, the will can still be valid if it was created during a time when the testator was lucid. Anderson v. Hunt (2011) 196 Cal. App. 4th 722, 727.

Presenting Evidence of Incapacity

In addition to documentary evidence, a contestant may use the testimony of both experts and laypersons in proving the testator lacked testamentary capacity at the time of the creation of the will.

Expert Witnesses

The opinion of an expert witness well-versed in cognitive functioning can be very persuasive. These opinions are usually based on medical records, family histories, and (sometimes) the expert’s interactions with the testator. An expert witness is often most helpful in establishing the first step in proving lack of capacity, i.e., the testator suffered from a deficit. The deficit can best be proved by a medical diagnosis. One of the challenges faced by a medical expert is reconstructing a deceased person’s capacity based on statements in medical records, testimony of family and friends, and the like.

It is instructive to note that “the mere diagnosis of a mental or physical disorder” was held insufficient, standing alone, to support a conclusive determination that a testator lacked capacity. Cal. Probate code § 811(d) (Emphasis added). The court stated that the testimony must also connect the mental deficit (which may be proved by diagnosis) and the creation of the disputed will. Unless the expert witness has had some first-hand experience with the testator, his or her testimony may not be persuasive of the capacity determination because of the inability to provide evidence of the connection. See Estate of Goetz (1967) 253 Cal. App. 2d 107.

Nonetheless, if the medical expert testifies to the deficit and a connection to the will, and that to a degree of medical certainty the testator probably lacked capacity when the will was signed, then the contestant meets their burden of proof and the burden shifts to the opposing party. If an opposing expert testifies, it is the court’s duty to consider and evaluate the likely conflicting opinions and render a decision based on the more credible opinion.

Laypersons (Non-Experts)

A common part of capacity disputes is the testimony of family and friends of the testator who have knowledge of the testator’s behavior at the time of the execution of the will. The testimony of friends and family members about the testator’s behavior, routines, habits, and personality traits (and changes thereto) can help illuminate any potential connection or effect that the testator’s mental state had on the creation of the will.


Proving a testator lacked testamentary capacity is a daunting task. The potential reward of a successful challenge, however, has long convinced frustrated heirs to attack the estate plan in an effort to uphold the perceived wishes of the testator. Knowing the kind of evidence required in order to meet the burden of proving incapacity is essential before launching an attack on a will or an estate plan. Contact our experienced Trust and Estate Litigation Attorneys to discuss you concerns about a will, trust or probate issue. Call (760) 747-2202, or contact Palomar Law Group online.