Considerations on Capacity Issues in Estate Planning and Trust and Estate Litigation

Many issues is trust and estate disputes center on whether a testator, i.e., the person who makes a Will, or a Trustor/Settlor, the person who creates a Trust, truly has the requisite mental capacity to accomplish the will or Trust.  It is perhaps a misconception among many people, that because their mom or dad, or grandmother or grandfather, is facing or even struggling with the conditions attendant to the aging process, that they may for these reasons or for reason of a particular diagnosis of a particular disease state, therefore “lack capacity” and thus have lost the ability to competently execute an estate plan.

Each case and situation must be evaluated on its own facts and merits. However, California case law is clear that in its grant to its citizens the right to make Will, or a more complicated Trust, and decide what they want to do with their own assets in terms of determining inheritance bequests, notwithstanding the onset of conditions associated with aging. It is therefore important, in evaluating such issues, to understand the rules of law that apply to them, so that a proper analysis of the facts of given situation can lead to the right conclusion in a particular matter.  California case law, and the appellate and Supreme Court levels, provides instruction to attorneys and clients, “the rules,” by which such matters may be considered.  In the seminal case of Anderson v. Hunt (2011) 196 Cal. App. 4th 722, 728 the Court reviewed the state of the law as it has evolved in California, and still exists:

“It is well established that ‘old age or forgetfulness, eccentricities or mental feebleness or confusion at various times of a party making a will are not enough in themselves to warrant a holding that the testator lacked testamentary capacity.’ (Estate of Wynne (1966) 239 Cal. App.2d 369, 374 [48 Cal.Rptr. 656], citing Estate of Sanderson (1959) 171 Cal. App.2d 651, 660 [341 P.2d 358,] and Estate of Lingenfelter (1952) 38 Cal.2d 571, 581 [241 P.2d 990].)

‘It has been held over and over in this state that old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.’ (Estate of Selb (1948) 84 Cal. App.2d 46, 49 [190 P.2d 277].) Nor does the mere fact that the testator is under a guardianship support a finding of lack of testamentary capacity without evidence that the incompetence continues at the time of the will’s execution. (Estate of Nelson (1964) 227 Cal. App.2d 42 [38 Cal.Rptr. 459]; Estate of Wochos (1972) 23 Cal. App.3d 47 [99 Cal.Rptr. 782].)

Well, a lot of folks may not appreciate all of the foregoing.  Yet, for a century or more, California law has held that testamentary capacity is one of the lowest levels of capacity standards under the law, and is barring proof to the contrary, always presumed to exist. See, In re Sexton’s Estate (1926) 199 Cal. 759, 766. The sense in California case law is that a person should not be deprived of their right to decide about their own funds, as long as they know the natural objects of their own bounty and have a reasonable appreciation about the nature and scope of their estate and are free from undue influence. There are myriad cases that also make this point and apply to the circumstances to issues here. The presumption of capacity is also statutory. Probate Code § 810 also provides:

The Legislature finds and declares the following:

• For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.

• A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.

• A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder.

The California Supreme Court has defined undue influence as “pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” Rice v. Clark (2002) 28 Cal.4th 89, 96.  We will discuss this concept – “undue influence” – in future posts.

This blog post is presented as an informative service to the reader and does not constitute legal advice. 
If you have questions regarding any matter confronting you, please contact Bochnewich Law Offices, APC.