Who Is Mentally Competent Enough to Make a Will?

Generally speaking, any individual who is 18 years of age or older and of sound mind may make a will. What this means in practice is that those who do not meet bothof these requirements are incapable of making wills. To do so requires some additional action, such as that of a conservator or judge in order to make a will enforceable. Two illustrative examples of those who cannot make wills according to this definition would be elderly people with larger estates at risk who suffer from mental impairment, or perhaps a famous child actor.

Aside from those two classes of potential testators, the phrase "of sound mind" doesn't appear that instructive, so let's take a closer look at people who are not mentally competent to make wills.

Under California law, an individual is not mentally competent to make a will if either of the following are true:
1) The person does not have sufficient mental capacity to be able to:
- understand the nature of the testamentary act
- understand and recollect the nature and situation of the individual's property, or
- remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done...

Essentially then, the first scenario means to encompass those people who do not understand the nature of their acts, and are probably highly susceptible to coercion into making decisions that may not be in their best interests.

The second scenario is meant to protect those people who may be excluded from a decedent's will through no fault of their own. This protection is important because, you will remember from our discussion of the omitted spouse share, the intentional exclusion of a spouse or child within a will or other estate planning document precludes them from inheriting anything. I remember reading a case illustrative of this principle which dealt with a schizophrenic man who believed that his wife was having an affair, when she was not. Thus, this section has the potential to save the omitted spouse or omitted child (or other person) from being excluded entirely when they become the victim(s) of delusions or hallucinations.