A last will and testament and other estate planning instruments allow a person to decide in advance how their assets will be distributed to heirs. The decisions contained in a person's estate plans are deeply personal, and most people think long and hard about how they want their assets to be divided among their loved ones or other beneficiaries. Consequently, it is crucial that any will, trust, or other estate planning document represent an individual's true intentions. When a person suffers from dementia or another illness that affects cognition, this is particularly important.

In order for a will to be legally valid, the person making it must have testamentary capacity. Testamentary capacity is a legal concept that ensures that an individual's estate planning decisions are being made by someone who is mentally competent.

California Law Regarding Testamentary Capacity

In California, a testator (the person writing the will) must have a "sound mind" in order to make a valid will. In other words, the person must be able to think clearly and make decisions. Generally speaking, the testator must:

When a person passes away, it is not uncommon for heirs, beneficiaries, family members, or other interested parties to become suspicious of the decedent’s estate planning decisions. In some cases, a deceased person may have been subject to undue influence just before their passing—an act that can invalidate the will and any other affected estate planning documents. But what is undue influence? And how can you prove that your loved one was unduly influenced? Let's find out.

Understanding Undue Influence

In the realm of estate planning, undue influence refers to when someone manipulates another person into making decisions they would not normally make. This manipulation can be emotional, psychological, physical, or financial. It often occurs in instances where an elderly person or someone who is not mentally sound is taken advantage of by another party who wishes to gain control over their estate. In many cases, the victim may not even understand the implications of the decision they are making until after they have signed the document. If the person is manipulated, forced, or tricked into adding or removing certain provisions or beneficiaries, challenging the document could lead to the whole thing being invalidated by the court.

It is important to understand that the law allows for a spouse, family members, and loved ones to offer their input when a person is creating their estate plan. This is not usually considered undue influence, provided that such input takes the form of reasonable opinions, conversations, and calculations. If, however, a caretaker or a single family member cuts the person off from other family and friends or threatens to withhold care, undue influence could be an issue.

If you are asking this question, you have probably heard quite a bit about what going through probate is like - or you have been forced to endure the process yourself to settle a loved one’s estate. So you know that going through full probate is an arduous process. The fees and costs involved can seem astronomical, especially if you have to hire appraisers, fend off a pointless contest, or handle any of the other hurdles that can pop up during probate. You may now be wondering if there is a way that you can avoid putting your loved ones through probate in your own estate plan. Fortunately, there is. By using a living trust, you can bypass the probate courts entirely. Your beneficiaries will appreciate it - and there may be benefits of using a trust during your own lifetime.

How Does Using a Trust Let My Beneficiaries Skip Probate?

A trust is an excellent alternative to a will. When you create a trust, you fund it by transferring ownership of some or all of your property to the trust.

Do not worry, this does not mean that you lose control of your money or property. You can declare yourself the trustee of your trust and authorize yourself to make distributions from the trust at your own discretion. Essentially, so long as you use a revocable trust, you can do whatever you please with the property you have funded your trust with.

You may or may not have heard the term “holographic will” before. No, it is not a high-tech device that presents your final wishes using a hologram. Rather, a holographic will is a handwritten will made and executed by the testator alone. It need not comply with all the legal formalities required to make any other type of will, such as being witnessed by two people.

As you can imagine, there are a lot of ways for this to go wrong. Holographic wills are generally used only in emergency situations where the testator knows that they are dying and do not have the time or ability to find a lawyer and create a formal will. Really, a holographic will should never be used if you can avoid it. It can be extremely difficult to prove that these documents are valid and extremely easy to successfully challenge one. Your best bet is to work with an estate planning attorney rather than taking a DIY approach to such an important legal matter.

Why is Making a Holographic Will Not a Good Idea?

In many ways, creating a valid and enforceable holographic will is much more difficult than making a will in a lawyer’s office. The only time you should consider doing this is if you are facing imminent death and you have absolutely no other option. If you have been stranded in the desert for a week with little hope of rescue, it may be worth a shot. Otherwise, it probably is not a good idea.

When you have taken the time to make a will, the last thing you want is for someone to challenge it when you are no longer there. You made a will because you want to control where your assets go. Having your will set aside after a successful challenge can defeat the purpose entirely. Will contests can be expensive, and they can also cause lasting rifts among families that may never heal. Fortunately, there are a few tactics estate planning attorneys use to anticipate and prevent will contests. If you have any concerns about a potential will contest, it is important to let your lawyer know so that they can take steps to prevent one.

What Are Some Ways to Prevent a Will Contest?

There are a few steps that you and your attorney can take to greatly reduce the odds of a will contest. They include:

• No-contest clause - A no-contest clause in a will states that anyone who contests the will automatically receive nothing. These clauses are very effective when they are enforceable. However, judges will frequently override these clauses if they believe the person who filed a contest had probable cause to do so. Additionally, there are limited circumstances under which these clauses can be enforced.
• Capacity documentation - One of the most common reasons wills are contested is because someone believes that the testator lacked the mental capacity to execute a will. It may be a good idea to obtain a letter from your doctor or a mental health professional stating that you are of sound mind and capable of creating a will.
• Careful execution - The legal requirements regarding how a will is to be executed are quite strict. Executing a will under the guidance of a lawyer can help ensure that anyone who plans to challenge your will for improper execution would be extremely unlikely to succeed.
• Self-proving clause - This tactic involves a formal written statement by those who witness you signing your will. Such a statement should include assertions that you clearly have the capacity to make a will, that you intend to create this will as it is written, and that there is no apparent undue influence and you are in no way being forced or coerced into signing. Your witnesses must not be beneficiaries.
• Explain disinheritance - Will contests are frequently initiated by someone who would inherit from you under the laws of intestacy, but was left out of your will. You can add a document explaining that you intentionally left this person out and it was not an accidental omission. It may be a good idea to include an explanation of why.

Your attorney may recommend any or all of these steps, or additional steps depending on your particular situation.