Estate PlanninG

How to Prove You Were Mentally Competent When Creating Your Estate Plan

While we all want to believe that our family and loved ones will honor our wishes expressed in our estate plan, contests are more common than you might think.

Maybe a family member doesn't receive what they thought they would after a loved one passes away. So to get what they believe they are entitled to, they may file a lawsuit alleging that the person who made the will (the testator) or trust (the grantor) was not mentally competent to create it. Unfortunately, there is a heightened risk that your estate planning documents will be challenged if you disinherit someone who ordinarily would have received money and property at your death or if you have been diagnosed with a medical condition that will slowly decrease your mental capacity. If a court finds that you didn't have the mental capacity to sign your estate planning documents, the documents will be invalidated. Your money and property will be transferred to the people identified by state law, who may not be the individuals you would have chosen.

In most states, there is a legal presumption that people have the capacity to create their estate planning documents and that they can transfer their property to whomever they would like. This means that the person challenging your plan has the burden of proving that you did not have the capacity when your documents were signed. Nevertheless, there are some proactive steps you can take to provide evidence that you were competent when you created or updated your estate plan.

Get a doctor's evaluation.

As close to signing your estate planning documents as possible, ask a doctor (preferably your primary doctor or a specialist in cognition such as a neurologist) to evaluate your mental capacity and document their opinion in writing. Your attorney can provide information to educate the doctor about the standards that must be met to have the capacity to execute your estate planning documents. This will assist them in determining and documenting whether you have the necessary competency.

Make a gift.

If you plan to disinherit or provide a proportionally smaller inheritance to a family member than they expect, consider making a gift to the family member close to when you sign your estate planning documents. If the family member accepts the gift and wants to keep it, they are admitting that you had the capacity to make the gift. If you had the capacity to make the gift, you more than likely had the capacity to sign your estate planning documents. This strategy will only work if your state's rules regarding the capacity needed for making a gift and signing the will or trust that gives away your money and property are the same. If a higher capacity level is needed to sign a will or trust than to make a gift, then this strategy won't work.

Document why you made your decision.

If you are disinheriting a child or other family member or providing an inheritance that may be less than they expect, tell your estate planning attorney the reasons for your decision. It may also be prudent to write down those reasons and record the names of other people you have told about your decision, such as friends or financial advisors. You can keep a copy of this document with your will, which may be evidence of the rationale and deliberation underlying your decision. However, it's crucial that you not list these reasons in your will or trust to avoid further complications during the contest.

What Standards Must Be Met to Show Mental Competence?

Under state law, you must have a certain level of understanding when you sign your estate planning documents. Even if you don't have the required level of mental competence before or after you sign your documents, if you are competent at the exact time you sign them, your documents will be valid. This is an important point because, as an example, individuals who live with dementia may still be mentally competent when signing their estate planning documents if they have days of lucidity or times of day when they are more lucid.

Having the mental competence to sign your documents doesn't mean you must understand all the legal terminology that those documents contain, but rather that you have a basic understanding of what you are doing when you sign. Depending upon your state's law, there may be different standards for determining capacity depending upon the type of document you are signing. Listed below are what you may generally see in a state's laws.


There is a relatively low threshold for showing mental competence (typically called testamentary capacity) to sign a will. To have the capacity to make a will, you must be able to know:

  1. Generally what type and how much property you own (actual knowledge of every piece of property is not required).

  2. Generally who you plan to leave your property to (you don't need to be able to name every relative that may benefit).

  3. That the will transfers your property upon your death.

Lifetime gifts.

Some states apply the same standard to wills as lifetime gifts, while others use a stricter standard. In states that apply a higher standard to gifts, you must satisfy the threshold for testamentary capacity, and you also must understand the financial impact of your gift—this means its effect on your future financial security or the financial security of those who are dependent on you.


Some states apply the same rules to trusts used to determine the capacity to make a will, but others apply the more stringent threshold used to determine the capacity to enter a contract. If this stricter threshold for contracts is used, the person creating the trust must be able to understand the nature of the transaction, including the rights, duties, and responsibilities created or affected by the trust, its significance, the consequences for the creator of the trust and others affected by its creation, and the risks and benefits involved in the transaction.

The applicable standard may also vary depending on the type of trust at issue. A testamentary trust (i.e., a trust created by the terms of a will) may be evaluated using the same less stringent standard applied to determine the capacity to make a will. The lower threshold applicable to wills may also be applied to a revocable living trust, which can be revoked or amended during your lifetime. In contrast, the higher threshold applicable to contracts may be used to evaluate capacity to establish an irrevocable trust, which cannot be amended or revoked.

Still feeling worried?

Are you concerned that someone may be dissatisfied with their inheritance and attempt to challenge your plan? You can take steps to avoid lawsuits or conflicts after you pass away, including measures aimed at proving your mental competency when your estate plan was created. Don't hesitate to get in touch with us so we can assist you in creating or updating your estate plan before serious competency issues arise. Call Santaella Legal Group, serving all of California, at (925) 831-4840.