Competency Test For Wills and Trust

Competency (or capacity) to make a will or trust is a foundational concept in California estate law. Questions about whether someone had the mental ability to understand and execute these documents are at the heart of many legal disputes. These allegations of incapacity can call an entire estate plan into question, leading to drawn-out litigation and fractured relationships.

California law approaches these cases with a clear starting point. Under California Probate Code 810, every adult is presumed to have the capacity to make decisions and be held accountable for them. This presumption places the burden of proof onto anyone claiming otherwise, requiring them to present solid evidence of incapacity. 

Even a medical diagnosis alone is not enough. Judicial determinations must be based on evidence that the individual suffers from one or more mental deficits so significant that, given the specific circumstances, the person should be (or should have been) considered legally incapable of performing the act in question. From there, the law provides specific standards for determining a person’s legal capacity.

Legal Standards of Competency

Under California law, determining whether someone has the legal capacity to create or modify a will or trust begins with the framework set out in California Probate Code 811. This statute outlines the mental functions that, if impaired, may indicate a lack of capacity. These standards apply to both wills and trusts and must be considered in any legal challenge involving alleged incapacity.

To find that someone lacks capacity, there must be evidence of a deficit in at least one of the following areas:

1. Alertness and attention, such as orientation to time, place, and person or the ability to concentrate.
2. Information processing, including memory, comprehension, logical reasoning, and the ability to communicate or plan.
3. Thought processes, such as disorganized thinking, delusions, hallucinations, or intrusive thoughts.
4. Mood and affect, such as extreme or persistent emotional states that are disproportionate to the person’s situation.
   

Again, its important to note that a medical diagnosis alone is not enough. The court must also find that the deficit significantly impairs the person’s ability to understand and appreciate the consequences of their actions in relation to the specific legal act in question. The nature, frequency, severity, and duration of the deficit are all relevant in making this determination.

While the same criteria in Probate Code 811 apply to both wills and trusts, the legal standards used to evaluate capacity differ depending on the type of document involved. Once a qualifying deficit is proven, the next step is to determine whether that deficit affects the specific legal threshold required to make or modify a will or a trust.

Testamentary Capacity – Wills

The capacity to create or change a will, known as testamentary capacity, is governed by California Probate Code 6100.5. This standard is considered relatively low. A person is deemed competent to make a will if, at the time of execution, they can:

1. Understand the nature of the testamentary act.
2. Understand and recollect the nature and situation of their property.
3. Remember and understand their relationships with living descendants, spouse, parents, and others whose interests are affected by the will.

Additionally, the individual must not suffer from a mental health disorder with delusions or hallucinations that directly influence the way they distribute their estate.

This standard is considered relatively low because creating a will requires only a minimal level of understanding –  much lower than what’s required to create a trust.

Contractual Capacity – Trusts

In contrast, the capacity to create or amend a trust, often referred to as contractual capacity, is governed by California Probate Code 812, along with relevant case law. This standard is more demanding because trusts are typically more complex and require a higher level of understanding, especially when they involve ongoing management of assets.

To be legally capable of creating or modifying a trust, a person must be able to:

1. Understand the rights, duties, and responsibilities created or affected by the decision.
2. Understand the probable consequences of the decision for themselves and others.
3. Understand the significant risks, benefits, and reasonable alternatives involved.

This standard reflects the view that establishing a trust is more akin to entering into a contract than making a will. As such, the law requires a deeper level of comprehension and decision-making ability.

Testamentary Capacity vs Contractual Capacity

Legal Ability	Will	Trust
Know you’re making the document	✅	✅
Know what you own	✅	✅
Know your heirs	✅	✅
Understand how the document affects your estate plan	✅ (basics only)	✅ (in depth)
Understand fiduciary relationships (e.g., trustee duties)	❌ Not required	✅ Required
Understand legal ownership transfer	❌ Not required	✅ Required
Appreciate risks and alternatives	❌ Not required	✅ Required
Higher-level reasoning/planning	❌ Not required	✅ Required

The key difference between these two standards lies in the level of understanding required. For example, a person with early-stage dementia who clearly recognizes their children, understands that they are signing a will, and knows they own a house and some savings may still have the capacity to execute a valid will. However, that same person might not have the capacity to create or amend a trust if they cannot grasp how the trust operates, what duties a trustee must perform, or how the assets will be managed and distributed over time.

Creating a will is about expressing simple intent, while creating a trust demands a more nuanced understanding of legal relationships and future consequences. This difference is why courts often uphold wills that would not meet the stricter threshold required for trusts.

How Competency Is Assessed

Assessing competency is a crucial part of the estate planning process, especially when there is any concern about the testator’s mental state. Whether done informally or through formal channels, a clear evaluation of capacity helps ensure the validity of the will or trust and can serve as critical evidence if the document is later contested.

Competency may be evaluated:

• Informally by the attorney drafting the will or trust, based on conversations and observations.
• Formally through a medical or psychological evaluation (especially if there are concerns or challenges expected later).
• In court if someone contests the will or trust after death, arguing the testator lacked capacity.

Attorneys often take steps like:

• Interviewing the client alone.
• Taking detailed notes about the person’s behavior and understanding.
• Asking specific questions to confirm capacity.

Even when no issues are immediately apparent, these steps create a solid record that can help uphold the estate plan if it’s ever challenged. A thoughtful and well-documented assessment process is one of the best defenses against future disputes.

Protect Against Challenges

Estate plans are often contested on the grounds of incapacity or undue influence, especially when there are large assets, estranged family members, or unusual decisions involved. While legal standards provide a framework for evaluating capacity, proactive steps taken during the planning process can significantly reduce the risk of future disputes.

Below are key strategies that can help protect the integrity of a will or trust:

• Video record the will/trust signing (optional but persuasive)
• Get a medical letter affirming capacity (if there are early signs of decline)
• Avoid naming interested witnesses (e.g., caregiver who’s receiving a gift)
• Use a no-contest clause (Probate Code § 21310–21315), if enforceable
• Have the client explain their decisions in writing or in person
• Avoid last-minute changes under suspicious circumstances

Together, these steps can provide a solid evidentiary foundation if a challenge arises and, in many cases, can discourage legal disputes from being filed in the first place. Just as important, anyone creating or modifying a will or trust should do so with the guidance of an experienced estate planning attorney. A skilled attorney can ensure the documents comply with legal standards, help implement these protective measures effectively, and spot potential red flags before they become problems.

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Understanding the legal standards of competency for wills and trusts is essential to creating a valid, enforceable estate plan. The difference in capacity required for each reflects the complexity of the decisions involved, and failing to meet those standards can lead to costly and emotional disputes. With the right precautions and guidance from a qualified Estate Planning Attorney, individuals can protect their intentions, minimize the risk of challenges, and ensure their wishes are honored.