(a)An individual is not mentally competent to make a will if, at the time of making the will, either of the following is true:
(1)The individual does not have sufficient mental capacity to be able to do any of the following:
(A)Understand the nature of the testamentary
act.
(B)Understand and recollect the nature and situation of the individual’s property.
(C)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 health disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.
(b)This section does not supersede existing law relating to the admissibility of evidence to prove
the existence of mental incompetence or mental health disorders.
(c)Notwithstanding subdivision (a), a conservator may make a will on behalf of a conservatee if the conservator has been authorized to do so by a court order pursuant to Section 2580.
Notes of Decisions
Cited in
11
cases (
4 in the last 5 years), 2013–2025 · leading case:
Armuress Sapp v. Rogers, 36 Cal. App. 5th 86 (Cal. Ct. App. 2019).
Armuress Sapp v. Rogers, 36 Cal. App. 5th 86 (Cal. Ct. App. 2019).
“( Prob. Code, § 6100.5, subd. (a)(1).) Incapable has the same meaning when it comes to personal representatives.”
Lintz v. Lintz, 222 Cal. App. 4th 1346 (Cal. Ct. App. 2014).
· cites it 2× “:[][] (a) The rights,, duties, and responsibilities created by, or affected by the decision[;] [f] (b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decisionf; and] (c) [f] The significant risks, benefits, and reasonable…”
Marriage of Greenway, 217 Cal. App. 4th 628 (Cal. Ct. App. 2013).
· cites it 2× “(Prob. Code, § 6100.5, subd. (a)(1).) In addition, an individual lacks mental competence if he or she suffers from a mental disorder with symptoms such as delusions or hallucinations that cause him or her to devise property in a way the individual “would not have done.”
Marr. of Greenway, No. G045949 (Cal. Ct. App. June 26, 2013).
· cites it 4× “2d 46 49 (Estate of Selb); Prob. Code, § 6100.5.) Joann disagrees with this analogy and suggests two approaches she believes require a higher level of mental capacity.”
In re Frasier Fam. Trust, 2020 NV 56 (Nev. 2020).
· cites it 2× “Spar, a qualified gerontologist, examined Dinny and found that "she retains the testamentary capacity (as defined in Cal. Probate Code § 6100.5) required to modify her estate plan," and "she retains the capacity to enter into contracts, as long as she is not required to rely on…”
Conservatorship of R.C., No. G061621 (Cal. Ct. App. Feb. 5, 2025).
· cites it 2× “” (Prob. Code, § 6100.5, subd. (a)(1).) Accordingly, “‘[a] testator is of sound and disposing mind and memory if, at the time of making his will, he has sufficient mental capacity to be able to understand the nature of the act he is doing, and to understand and recollect the…”
Est. of Shapiro, No. G050036 (Cal. Ct. App. July 30, 2015).
· cites it 2× “Mental Capacity Probate Code section 6100.5, subdivision (a), establishes the standard for 7 mental incompetence to make a will.”
Est. of Sapp, No. E068030 (Cal. Ct. App. June 11, 2019).
“(Prob. Code, § 6100.5, subd. (a)(1).) Incapable has the same meaning when it comes to personal representatives.”
Est. of Sherman, No. B300842 (Cal. Ct. App. Feb. 2, 2021).
“The Court Applied the Correct Standard When setting forth the general principles relating to testamentary capacity, the court specifically stated that “[t]he standard for testamentary capacity is exceptionally low,” “[c]apacity to make a will is presumed,” and that “Probate Code…”
Gregge v. Hugill, No. H045113 (Cal. Ct. App. Mar. 16, 2022).
“) In contrast to the sliding scale rubric described above, Probate Code section 6100.5 “contemplates a significantly lower mental capacity standard for the making of a will.”
Frink v. Sims, No. C095127 (Cal. Ct. App. Nov. 2, 2022).
“(Prob. Code, § 6100.5, subd. (a).) Capacity to make a will has been described as “exceptionally low.”
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