ATTORNEY NEWSLETTER
Testamentary Capacity
Standard For Wills And Trusts
Capacity Issues And Financial Elder Abuse
A person’s mental health and intellectual functioning are central to their ability to sign a legal document. This is known in the law as a person’s “capacity” to do certain things. Capacity questions can arise for any person, but they most often arise in the context of a senior signing legal instruments and other documents. When it comes to executing a Will or creating or amending a trust, the standard for mental capacity in California is referred to as “testamentary capacity” and is defined in Probate Code Section 6100.5 and cases interpreting that statute. Capacity questions can be central in financial elder abuse cases. If you or a loved one has been a victim of financial elder abuse or exploitation of a senior with respect to his or her Will or trust or capacity issues for other actions in San Francisco or elsewhere in California, contact the Evans Law Firm, Inc. trusts and financial elder abuse attorneys at (415) 441-8669 and we can help. Our toll-free number is 1-888-50EVANS (888-503-8267).
Testamentary Capacity For Wills
California Probate Code Section 6100.5 defines testamentary capacity. The statute reads in pertinent part:
(a) An individual is not mentally competent to make a will if, at the time of making the will, either of the following is true:
(1) The individual does not have sufficient mental capacity to be able to do any of the following:
(A) Understand the nature of the testamentary act.
(B) Understand and recollect the nature and situation of the individual’s property.
(C) Remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental health disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way that, except for the existence of the delusions or hallucinations, the individual would not have done.
Under the statute, then, any individual has the capacity to make a Will unless the individual did not:
- Have sufficient mental capacity to understand the nature of the testamentary act, or
- Understand and recollect the nature and situation of the individual’s property; or
- Remember and understand the individual’s relations to their living descendants, spouse, and parents, and those whose interests are affected by the will.
Testamentary Capacity For Trusts
Courts apply this same testamentary capacity standard to the creation and amendment of trusts. Anderson v. Hunt, 196 Cal. App. 4th 722 (2011)(capacity to execute a trust is governed by Probate Code section 6100.5 when a trust “closely resemble” or is “analogous to” a will); Walton v. Bank of California, 218 Cal. App. 2d 527, 541 (1963)(“generally the test for a trustor’s capacity is the same as for the capacity to execute a will”).
The bottom line for testamentary capacity as it relates to Wills and Trusts is that the individual has the required capacity if they understand the purpose and function of what they are signing and that their property will pass to the person(s) they designate in the document (trust or will).
Capacity Issues And Financial Elder Abuse
Unfortunately, there are persons ready to take advantage of a testator’s or settlor’s diminished capacity, and get themselves and their own family members inserted into a Will or executor or trustee and/or beneficiary despite the senior’s lack of understanding what is going on. Conversely, there are people who may insist that the senior lacks testamentary capacity when he or she is trying to correct some self-serving trust amendment or will that has been fraudulently created. We at Evans Law Firm have seen financial abusers take either side on the question of capacity depending on which opinion of the victim’s capacity favors the abuser’s interests.
Contact Us
If you or a loved one has been a victim of financial elder abuse or a breach of fiduciary duty by a trustee in San Francisco or elsewhere in California or, contact Ingrid M. Evans and the other Evans Law Firm trusts and financial elder abuse attorneys at (415) 441-8669, or by email at <a href=”mailto:info@evanslaw.com”>info@evanslaw.com</a>. Our toll-free number is 1-888-50EVANS (888-503-8267).
