There may be a heightened concern for setting up an estate plan for an ailing relative or friend who is suffering from illness. However, the affect of mental illness adds another issue to establishing whether the testator has capacity to draft a will. Mental illness alone does not establish that the testator lacks testamentary Capacity. California Probate Code sections 810(b) and(d), Estate of Finkler (1935) 3 Cal. 2d 584, 594-595.

However, a person's mental condition including any mental illness is certainly a factor considered by the court in determining testamentary capacity. For example, a person who has a mental illness that causes hallucinations or "insane delusions" may not have testamentary capacity. Often times, this analysis is very fact specific and may vary based on the state and recent court rulings. If you have concerns as to whether a loved one has capacity to draft their estate litigation documents you should consult with an experienced Los Angeles estate litigation attorney.