I have been doing capacity assessments for over a decade, and even after many years of experience, each case is unique, because people have many different life experiences that come into play in these complex evaluations. I find that most people, apart from attorneys working in this area, have questions about exactly what "testamentary capacity" is, and how a psychologist such as myself, might conduct this type of assessment. In this article, I will try to clarify some common misconceptions about testamentary capacity, which is a crucial aspect of estate planning in California. Let's start with an easy one: What is meant by "testamentary?” This is simply the capacity, or ability, to create a will that decides where a person's assets, whether financial or in the form of property and possessions, are going to go after that person has passed.
California Law and Testamentary Capacity
In California, Probate Code Section 6100 states that anyone 18 or older who is "of sound mind" can make a will. "Sound mind" translates to having testamentary capacity, and this can get very tricky in situations where there is a question of a person's cognitive function or ability to make decisions. Questions about a person's "sound mind" often come up in situations of severe mental illness, such as schizophrenia, or when a person's cognitive function is impaired because of a disease process, like dementia. Here, the law defines mental competency for creating a will as having the ability to:
Understand the nature of the testamentary act (making a will).
Understand and recollect the nature and situation of their property (this includes money, real estate, possessions, and any other assets).
Understand the natural objects of their bounty (who they might typically leave assets, like close relatives).
Legal terminology can be overwhelming for those others who are not legal professionals, but in this case, the law simply means that a person needs to understand what it is to make a well, what property or money they have to give away, and who they might leave their assets to after their death. In some cases, this is very straightforward, and there is no question of a person's ability to make a will, know what they have to give, and know who they want to give it to. But in other situations, testamentary capacity is not straightforward at all, for example, in the case of a person with dementia who cannot understand the meaning of making a will, or in the case of a person with schizophrenia who holds a delusional belief that a family member is plotting against them, and wishes to cut that person out of their will as a result of this delusion.
California-Specific Considerations
While the core evaluation process remains similar, here are some California-specific aspects to consider:
Presumption of Capacity: California law presumes a person has testamentary capacity unless proven otherwise. This is very important because it is a matter of respect for individual autonomy. This is something that all of us want and expect–to make our own decisions about our lives, including what we want to happen to our assets after we die.
Undue Influence: California courts take undue influence on the testator (person making the will) seriously. A capacity assessment, like the ones I conduct, will pay close attention to potential manipulation or coercion, especially if the will significantly deviates from what the person would typically do. For example, I have seen cases in which an older adult with a dementia diagnosis wishes to change their will to leave assets to a caregiver who has become intertwined in their life recently, despite concern and suspicion from family members who believe the caregiver is asserting undue influence over the person.
Finding Help in California
California has a vast network of qualified professionals to assist with testamentary capacity assessments, including myself. Typically, either a person wishing to establish or change their will, or a concerned family member, will reach out to me with a request for a capacity evaluation to determine whether the person has the capacity to make these changes. The evaluation involves testing and interviews with the person wishing to change their will, as well as collateral interviews with family members, caregivers, and others who may have insight into this situation and the person’s history and values. These evaluations also sometimes involve looking at financial records and medical records, which may provide valuable evidence about a person's capacity. For example, if financial records show that a person has been unable to pay their bills independently, or has given away thousands of dollars recently to scams, this may be evidence to understand the person's capacity to make it well.
Estate planning attorneys can also guide you through this process, and I often get referrals from estate planning and attorneys for testamentary capacity evaluations in California.
Remember:
A testamentary capacity assessment conducted by a qualified psychologist in Los Angeles and throughout California strengthens your will's validity.
Don't hesitate to seek an evaluation, especially if pre-existing health conditions might raise concerns down the road. By planning ahead, you ensure your wishes are respected and your loved ones' inheritance is protected.
Begin a Testamentary Capacity Assessment in Los Angeles, CA
I would be happy to use my years of experience in conducting capacity assessments to help you find the right path forward. You can learn more about the benefits of testing with Dr. Reger by and more by following these simple steps:
Contact (424) 262-1925 to schedule your appointment
Meet with Dr. Reger for an evaluation
Start evaluating testamentary capacity!
Other Services Offered by Dr. Reger in Los Angeles, CA
Capacity assessments are not the only service offered by my Redondo Beach-based practice. I’m also happy to offer multiple neuropsychological and psychological assessments. Other assessments include cognitive and dementia testing, pre-surgical assessments, and med-legal evaluations. In addition to evaluations, I also provide individual therapy, counseling for older adults, and mental health consultations and presentations. Visit my blog for more help today!