MBE Rules · Wills, Trusts & Estates

Testamentary Capacity

Cal. Prob. Code § 6100.5

The rule

A person lacks testamentary capacity if, at the time of execution, the person does not have sufficient mental capacity to (1) understand the nature of the testamentary act, (2) understand and recollect the nature and situation of the property, or (3) remember and understand the relations to the natural objects of the person's bounty.

In plain English

Testamentary capacity means that a person must be mentally capable of understanding what they are doing when they create a will. This includes knowing that they are making a will, understanding what property they own, and recognizing who their beneficiaries are.

Worked example

Alice, suffering from advanced dementia, attempts to write a will leaving her estate to her neighbor. At the time of writing, she cannot recall her children's names or the extent of her property. The court finds that Alice lacked testamentary capacity, and her will is deemed invalid.

Memory hook

To make a will, you must know what you own and who you love!

The trap

Exams often present scenarios where a testator appears to have some understanding but lacks complete awareness, leading students to incorrectly conclude that testamentary capacity exists.

How examiners test it

Questions typically involve fact patterns that test the boundaries of mental capacity, often focusing on the testator's understanding of their property and relationships at the time of will execution.

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