Law Review: Will challenged by disinherited grandchildren

Kelley R. Carroll, a certified specialist, handles estate planning and will contests in our office with the help of our firm’s litigation department. I do not handle any, be forewarned.


Catherine “Kay” Pearson died in December 2016 at the age of 90 years. She had a close relationship with her daughter Cathy who died of cancer in 2014. Cathy and her husband had two daughters. The family was described as close and loving. Over the next few years, the relationships became a bit strained and Kay’s behavior became somewhat unpredictable. The basic facts are that as the granddaughter was caring for her, Kay became concerned that she was out for the money.

On the other hand, Kay had a will drafted leaving her sizable estate to the granddaughter and other family members. That will was never signed as the attorney was uncomfortable about Kay’s mental capacity. Kay retained another attorney who was told to leave Kay’s estate to St. Jude Children’s Research Hospital for “sick babies.”


Kay died in December 2016. She expressly disinherited her granddaughter and other family members, leaving her property to St. Jude Children’s Research Hospital.

The granddaughter challenged the will claiming Kay suffered from delusions at the time she signed the will.


As a general proposition, California law allows a Testator (Will-maker) to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. Testamentary competence is presumed.

However, an individual is not mentally competent at the time of making a will if the individual suffers from mental health disorders, including delusions or hallucinations.

(Probate Code 6100.5 (a)(2)) “which delusion or hallucinations result in the individual’s devising property in a way that, except for the existing of the delusions or hallucinations, the individual would not have done.”


The trial court found that Kay was not experiencing delusions within the law. Several medical experts testified to Kay’s moderate cognitive impairment but no dementia or delusions.

The Court of Appeal in closing its opinion seemed to show sympathy for the granddaughter, writing, “In closing, we recognize the result is likely very disappointing for [granddaughter]. Nevertheless, we are bound to apply the law. Absent compelling evidence, testamentary competence is presumed.”


I must say these are difficult cases. I have written several columns on this topic and I am never sure who the bad guys and the good guys are. Is the caregiver angling for an inheritance, or sincere, or a combination of both? In our case, was it totally irrational and unfair for Kay to turn against her granddaughter? I have seen many of these cases where the caregiver all of a sudden ends up inheriting at the expense of the family, I am always suspicious, but you never know.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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