How sound of mind is a sound mind?

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.

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Robert J. Lamm

Licensed since 1999

Member at firm Cummins & White, LLP

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