Trust and Estate – Probate and Trust Disputes – Part 1

Probate and Trust Disputes – Part 1: What is a Sound Mind?

By Randy Ortlieb and Jordan Wager

Legal capacity – also known as being of “sound mind” – has specific legal definitions in probate and estate planning disputes.  The law recognizes that the level of understanding necessary to execute a document varies with the complexity of that document.

This article concerns evaluating the most basic level of capacity, which is required to make a will. Evaluating the capacity to create a trust involves a similar analysis but with the added requirement of assessing the complexity of the estate plan and the related trust document. It is widely felt among probate practitioners that the level of capacity to create a trust is often greater than needed to make a will. Contact Palomar Law Group for assistance in any probate or trust disputeSchedule your free consultation by calling (760) 747-2202.


Testamentary Capacity: The mental ability that a person must have to prepare a valid will. Sometimes referred to as “of legal age and sound mind.”

Testator: Person who makes a will.

Capacity to Make a Will?

Probate Code § 6100.5 states a testator must have an understanding of the following in order to have the requisite testamentary capacity:

  • Nature of testamentary act (“What am I doing?”);
  • Extent and character of the testator’s property (“What do I own?”); and
  • Relationship to family members and all others whose interests may be affected by the will (“Who will inherit?”)

Further, in order to have testamentary capacity a person may not suffer from:

  • A mental disorder with symptoms including delusions or hallucinations; and
  • The delusions or hallucinations cause the testator to devise his property in such a way that he would otherwise not have done.

Analyzing Capacity – Two Factors

Factor One: Is or was there a deficit? Probate Code § 811 sets forth four categories of mental functions.  A person may lack testamentary capacity if he has a “deficit” in one or more of the following categories:

  • Alertness and attention;
  • Information processing;
  • Thought processing; and
  • Ability to modulate mood and emotions

Factor Two: Does or did the deficit cause significant impairment?   If it can be shown that a person had a deficit in one or more of the above mental functions, the next step is to assess whether that deficit “significantly impaired the person’s ability to understand and appreciate the consequences of his or her own actions” with regard to the creation of a will. Probate Code § 811(b) (emphasis added).

Significant Impairment

The deficit must have significantly impaired the testator’s mental processing enough to have obscured or confused his understanding of the will. In other words, the deficit must have caused the decedent to mistakenly create a will or bequeath the property in question.

Erratic Behavior Alone Does Not Prove a Significant Impairment

Evidence consisting solely of loss of function such as forgetfulness and mental confusion, and even  behavior that seems outrageous or antisocial has been repeatedly rejected by the courts as proof of testamentary incapacity.  One appellate court opinion states:

“[O]ld age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize friends or relatives, physical disability, absent-mindedness and mental confusion old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.” Estate of Selb (1948) 84 Cal. App. 2d 46, 49-52.

Thus, aberrant or eccentric behavior alone is not enough to prove incapacity.


In one case, the court determined the testator had capacity even though he was “eccentric,” forgetful, and child-like; he slept on a cot without a mattress and wore clothing that was so soiled and worn that it fell to pieces; and he had a “mind that seemed like it would drift off onto other subjects altogether.” Estate of Agnew (1944) 65 Cal. App. 2d 553.  Despite this eccentric behavior, the court of appeal reversed the judgment of the trial court, finding that the challenger failed to prove lack of testamentary capacity.

In another case, around the time the testator signed his will, he exhibited the unusual behavior that persuaded the trial judge to find he lacked testamentary capacity and to deny his will into probate:

  • He lived alone in a junk-filled dirty shack;
  • He gave someone a fish he had said he had caught, and the person discovered it was soaked in kerosene;
  • He would often run out of the house partially dressed or with nothing but a blanket wrapped around him;
  • He picked up articles out of garbage cans and hid them around his house; and
  • He would pin paper flowers to his rose bushes,

Despite this odd behavior, the Supreme Court reversed the judgment of the trial court and found that the contestant failed to prove lack of testamentary capacity.  Estate of Wright (1936) 7 Cal.2d 348.


Testamentary capacity has a very specific definition which requires more than proof of debility and eccentric behavior.  Which begs the question, how can incapacity be proven?

Contact the experienced Trust and Estate Litigation Lawyers at Palomar Law Group to discuss your trust, probate, or estate dispute. Call (760) 747-2202, or contact us online.