Hayward, CA asked in Contracts for California

Q: Can a mother disinherit her children if she lacks capacity? Also, is a will a type of contract?

A father left his will to his wife that states that she will get all of his money. He wished that she would divide their estate among their three kids. She later decided that she wanted to leave the entire estate to her new husband. She has cognitive issues and memory problems, forgetting simple things. Would she be able to disinherit her children, despite what the husband's will says?

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1 Lawyer Answer
Joshua D. Brysk
Joshua D. Brysk
  • Pleasanton, CA
  • Licensed in California

A: If he is deceased and she is still living; his will gave everything to her--it is now hers to do with as she pleases regardless of what he wanted. A will is a special sort of document called a testamentary instrument. It requires capacity, so cognitive issues raise questions about validity. However, the competency requirement for wills is a very low bar. Essentially, as long as she understands the document, what it does, who her heirs are at the time she signs it, then it will be upheld.

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