Many years ago, my high school English instructor liked to remind the class of the old saying, “If it was not for the last second rush, nothing would ever get done.” It was her way of teasing the procrastinators out there that were likely burning the midnight oil in order to meet an approaching deadline.
Little did I know how applicable those words would be in my future career. Estate planning is something that most people, quite literally, put off to the last possible second. Perhaps this is because we all have a tendency to focus on the things that are urgent while ignoring the things that are important. Unfortunately, waiting to put one’s affairs in order until the situation is urgent can have severe consequences. For instance, if one waits until they are suffering from dementia or admitted to the hospital with a grave condition and suffer periods of unconsciousness, their capacity to sign a will, trust, power of attorney, etc. becomes an issue of concern.
Cal. Prob C Sec. 6100.5 provides that a person does not have mental capacity to make a will if any of the following are true:
(1) They do not understand the nature of the testamentary act;
(2) They do not understand and recollect the nature and situation of their property;
(3) They do not remember and understand their relation to their living descendants, spouse, parents, and those whose interests are affected by the will; or
(4) They suffer from a mental disorder involving delusions or hallucinations that cause the them to choose a disposition of their property that they would not have chosen but for the delusions or hallucinations.
The standard is that one must have mental capacity at the precise moment that the document is executed. So, theoretically, one could be suffering from Alzheimer’s and nevertheless have the capacity to execute their will so long as they are lucid at the time of signing. Still, this is playing with fire and will be all the opening that one needs if they want to later contest the terms of the estate plan or, even worse, invalidate it all.