Lack of Capacity Challenges in Court

Emily just received a devastating notice. Her mother’s recent codicil – the one removing Emily as a beneficiary – has been challenged in probate court. The challenger? Her brother, Dax, who claims their mother lacked the mental capacity to sign it. Emily is terrified she’ll lose everything, and the legal fees are already mounting. She’s facing potential loss of inheritance and a rapidly draining bank account just to defend herself.

As an estate planning attorney and CPA with over 35 years of experience here in Escondido, I see this scenario far too often. It’s a painful reminder that even seemingly straightforward estate plan updates can become battlegrounds if capacity isn’t carefully considered and documented. The fact is, proving capacity—or disproving a claim of incapacity—is rarely simple.

What Constitutes “Capacity” in California?

The legal standard for testamentary capacity in California isn’t about possessing a brilliant intellect. It’s surprisingly low. Your mother, or any testator, only needs to understand:

The nature of the act (signing a codicil or will).
The nature and extent of their property.
Their relationship to those who would normally inherit from them (like Emily and Dax).
The disposition they’re making of their property.

The challenger, in this case Dax, has the burden of proof to demonstrate Emily’s mother didn’t understand these things at the time she signed the codicil. However, “demonstrate” can mean presenting medical records, witness testimony, or even evidence of unusual behavior around the time of the signing.

How Do We Protect Against Capacity Challenges?

The best defense is a robust offense. Proactive documentation is key. Here are several steps we take with our clients:

• Medical Evaluations: A formal evaluation by a physician, specifically addressing testamentary capacity, is the gold standard. The doctor should document their findings, including the patient’s orientation, memory, and understanding of the relevant facts.
• Video Recording: A recorded meeting where the client explains their wishes, acknowledges their understanding, and signs the documents can be incredibly powerful evidence.
• Witnesses: Having disinterested witnesses present at the signing, and documenting their observation that the client appeared to understand what they were doing, is crucial. Their testimony can be invaluable if a challenge arises.
• “Lucid Intervals”: If the client has a fluctuating condition, documenting a “lucid interval” – a period of clear thinking – around the time of the signing is vital.

Even without a formal medical evaluation, detailed attorney notes documenting the client’s understanding during the planning process can be helpful, although significantly less weight is given to them than a professional medical opinion.

What Happens When a Codicil is Challenged?

If a capacity challenge goes to court, it can be a lengthy and expensive process. Discovery—the exchange of information between the parties—can involve depositions, requests for medical records, and interrogatories. The court will likely appoint an attorney to represent the estate itself, separate from the beneficiaries.

If a codicil is invalidated, assets may force full probate; however, for deaths on or after April 1, 2025, estates under $208,850 (per CPC § 13100) may still qualify for simplified procedures. This limit is set until 2028. The estate would then be distributed according to a prior valid will, or if none exists, according to California’s intestacy laws.

How Does a CPA Help Navigate These Issues?

My dual role as a CPA provides a unique advantage in these situations. Accurate asset valuation is critical, both to establish the extent of the estate and to potentially demonstrate the client’s understanding of their property. Furthermore, if the codicil involved gifting strategies or trust provisions, understanding the tax implications and potential capital gains is essential. For example, ensuring the client understood the tax consequences of a particular disposition can bolster the capacity argument. The 2026 ‘tax cliff’ was averted by the OBBBA, which permanently increased the Federal Estate Tax Exemption to $15 million per person effective Jan 1, 2026. Old formula clauses should be reviewed to ensure they don’t over-fund trusts under these new limits.

What About Digital Assets and New Technologies?

The increasing prevalence of digital assets—cryptocurrency, online accounts, digital photos—adds another layer of complexity. A standard codicil often fails to include the specific RUFADAA language (CPC § 870) required to bypass federal privacy laws, potentially leaving your heirs locked out of crypto-wallets and email accounts. We routinely incorporate specific digital asset provisions into our clients’ estate plans.

What if My Client Created a Holographic Codicil?

Handwritten codicils are valid in California under Probate Code 6111, but only if the signature and material provisions (who gets what) are in your own handwriting. No witnesses or notary are required for this specific format. However, the burden of proving authenticity remains, and a challenge to the handwriting itself is common.

What makes a California will legally enforceable when it matters most?

In California, a last will and testament operates within a probate system that emphasizes intent, clarity, and procedural compliance. When properly drafted, a will does more than distribute property—it creates legally enforceable instructions that guide courts, fiduciaries, and beneficiaries through administration with fewer disputes and less uncertainty.

When a will is drafted with California probate review in mind, it becomes a stabilizing roadmap rather than a source of conflict. Clear intent, proper authority, and compliant execution protect both families and estates.

Primary Legal Authorities Governing Probate and Estate Administration

• Probate & Local Court Rules:
  
  San Diego Superior Court – Probate Division
  
  Official Escondido County probate rules, filing procedures, examiner notes, and Local Rule 4.4.5 governing remote appearances and non-evidentiary hearings.
• Attorney Licensing & Ethical Standards:
  
  State Bar of California
  
  The authoritative source to verify attorney license status, disciplinary history, and current ethical rules governing California attorneys and client trust accounts.
• Judicial Council Forms & Self-Help:
  
  California Courts – Wills, Estates, and Probate
  
  State-issued probate forms and guidance, including small estate procedures, primary residence transfers under AB 2016, and executor responsibilities.
• Federal Estate & Gift Tax Law:
  
  IRS Estate Tax Guidelines
  
  Federal rules governing estate and gift tax filing, including the permanent 2026 OBBBA exemption of $15 million per individual.