In California, “an individual 18 or more years of age who is of sound mind may make a will”.  California law presumes that a person has testamentary capacity to execute a will.  However, a person does not have a sound mind – and so cannot execute a will — if he or she fails either of two tests found in section 6100.5 of the Probate Code.  “The presumption is always that a person is sane, and the burden is always upon the contestants of the will to show affirmatively, and by a preponderance of the evidence, that the testatrix was of unsound mind at the time of the execution of the will.”  In re Estate of Perkins (1925) 195 Cal. 699, 703.

          The first testamentary capacity test is whether the individual has sufficient mental capacity to, “(A) Understand the nature of the testamentary act; (B) Understand and recollect the nature and situation of the individual’s property; and (C) Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.”  This is a very low capacity threshold.  Only getting married has a lower capacity threshold. Let’s examine.

          First, a person understands the nature of the testamentary act if he or she understands their will leaves their assets when at their death to beneficiaries.  Second, understanding and recollecting the nature and situation of the individual’s property requires only a general knowledge and appreciation of one’s assets and depends on the complexity of a person’s estate.  The more assets one owns, and the more complicated their estate, the greater the necessary, “understanding and recollection”.  Third, a person must remember their living heirs and understand how the will affects them.

          Next, the second testamentary capacity test is whether a person, “suffers from a mental health disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.”  This test was recently reexamined by the First Appellate Court in “Eyford v. Nord” 2021 WL 1034192.

          In “Eyford v. Nord”, the deceased testator (will maker) erroneously believed that her heirs were stealing her money and jewelry (and many other false accusations) and decided to disinherit her heirs who were apparently trying to help her.  The court applied the standard in section 6100.5 that a person must suffer from a mental health condition involving delusions or hallucinations that are the “but for” cause as to why he or she devised (left) his or her estate in the will. 

Because the testator did not suffer from a mental condition at the time when she executed her will the issue of whether she was delusional was not even relevant.    The court also distinguished between irrational beliefs that are “tethered to facts” (shown to exist) and delusions created by a mental health condition.  Irrational beliefs that are “tethered to facts” are not wholly delusional and so are insufficient to show an unsound mind. 

The foregoing section 6100.5 tests for testamentary capacity may be applied to executing a simple trust amendment or a simple trust if it is more like a will in its complexity.  Andersen v. Hunt (2011) 196 Cal.App.4th 722.

The foregoing is not legal advice.  Anyone confronting the issue of testamentary capacity should consult a qualified estate planning attorney.

Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at and 707-263-3235.

“Serving Lake and Mendocino Counties for nineteen years, the Law Office of Dennis Fordham focuses on legacy and estate planning, trust and probate administration, and special needs planning. We are here for you. 870 South Main Street Lakeport, California 95453-4801. Phone: 707-263-3235.”