Does this perjury affect the validity of the will? If so,how?
A: Perjury is a criminal law term. Only the county district attorney can prosecute a perjury. So, perjury or not, this is not the applicable standard for a "will contest."
In a will contest, each subscribing witness must be produced and examined. If no subscribing witness is “available” to testify as defined by Evidence Code § 240 (e.g., "dead"), the court may admit the evidence of other witnesses to prove the due execution of the will. Probate Code § 8253. The burden is on the person challenging the Will to prove that the witnesses made a false representation concerning the statutory requirements. Probate Code § 6110(c)(1); see also Estate of Saueressig (2006) 38 Cal.4th 1045, 1056.
What is the proof required for the dementia?
A: Under California law, to prove mental incapacity when contesting the validity of a Will, the court must find that: at the time the will was executed, testator suffered from a mental disorder with symptoms including delusions or hallucinations, which resulted in devising his or her property in a way which, except for the delusions or hallucinations, he or she would not have done. Probate Code § 6100.5(a)(2); see Estate of Perkins (1925) 195 C 699, 703-704; Goodman v. Zimmerman (2004), 25 Cal.App.4th 1667, 1678-1679 (decedent's unequal estate distribution to 3 children did not reflect lack of testamentary capacity).
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