Robert J. Lamm
One of the most common reasons for challenging the validity of a will or a trust is lack of mental capacity. One can put in all the no contest clauses that they want. If the signer doesn’t have mental capacity, the document will fail. Moreover, depending on the type of estate planning document, there are varying degrees of mental capacity required. So, how sound of mind is a sound mind when it comes to estate planning? When signing a will, California Prob C §6100.5(a) states that a person does not have capacity if:
- They do not have sufficient mental capacity to (1) understand the nature of the testamentary act, (2) understand and recollect the nature and situation of his or her property, or (3) remember and understand his or her relations to living descendants, spouse, parents, and others whose interests are affected by the will; or
- They suffer from a mental disorder with symptoms including delusions or hallucinations that result in his or her devising property in a way that, except for the delusions or hallucinations, he or she would not have done.
The first part of the test is fairly simple. You have to understand what you are signing. You have to understand what you have and what you are giving away. You basically have to know who you are giving it to and their relation to you. The second test can be misleading. Just because you have a mental disorder or suffer from hallucinations doesn’t mean that you lack capacity to sign a will. For instance, you could believe that you are the starting quarterback for the Dallas Cowboys, walk around town in full uniform and helmet (even during the offseason), and still sign a will leaving everything to your kids so long as you would have done so anyway. On the other hand, if your condition causes you to bequeath your estate to the Dallas Cowboy Cheerleaders, expect to have some problems.
Believe it or not, most people meet the requisite capacity when signing a will. It’s a low standard.
What about Trusts? It depends. In many cases, courts apply the same standard for wills to trusts so long as the trust is not overly complex. For trusts that are part of a complicated tax planning strategy, a much higher standard will be used. In fact, under California Prob C § 811, the court will look at several factors such as: one’s level of arousal or consciousness; one’s orientation to time, place, person, and situation; one’s ability to attend and concentrate; their short- and long-term memory, including immediate recall; their ability to understand or communicate with others, either verbally or otherwise; their recognition of familiar objects and familiar persons; their ability to understand and appreciate quantities; their ability to reason using abstract concepts; their ability to plan, organize, and carry out actions in one’s own rational self-interest; and their ability to reason logically.
Does this mean that if one is diagnosed with dementia they can’t sign their estate plan? No, it does not. So long as one has the requisite capacity at the moment in time that they are signing the document, they are good to go. However, as time goes by, and the condition worsens, capacity will become more of an issue.
