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California Probate and Trust Legal Summary Spring 2014

Catanese & Wells, A Law Corporation provides a quarterly newsletter to the California probate and trust professional community including lawyers, accountants, professional fiduciaries and insurance providers. www.cataneselaw.com.

This issue of the Probate and Trust Legal Summary focuses on challenges to a will or a trust instrument based upon “lack of capacity.” This area has evolved by reason of recent appellate decisions and a knowledge of the trends in appellate decisions is useful for any attorney or lay person involved with the drafting or later enforcement of these estate documents.

Any estate document such as a will or a trust may be invalidated by the court if sufficient proof exists that the party making the instrument lacked sufficient “testamentary capacity.” California presumes that a person is competent to make an estate instrument. See California Probate Code § 6100(a). Since the party making the instrument is presumed to be competent, even if there is some evidence that the testator suffered from some mental disorder affecting his or her lucidity, he or she is still presumed to have made the instrument when they were lucid. See Andersen v. Hunt (2011) 196 Cal. App.4th 722, 730.

When a will is challenged on the grounds that the testator lacked capacity the historical tests were whether he or she had an understanding of the nature and effect of their action in making the will and whether the testator understands his or her relationship to their living descendants, spouse or parents who are the natural object of the after death transfer of assets. See Goodman v. Zimmerman (1994) 25 Cal. App.4th 1667, 1677.

Recently, the appellate courts have adopted a “sliding scale” standard regarding more complex wills or trusts. The more complex the will or trust the greater chance the court will apply the contractual capacity standards when evaluating the evidence of whether the testator or the trustor had capacity to make the will or the trust, respectively. See Lintz v. Lintz (2014) 222 Cal. App.4th 1346, 1351-1353. The contractual standard of capacity is further defined in California Probate Code §§ 810 -812.

The trend of the law towards a sliding scale standard for court review of whether a person has sufficient legal capacity to make a will or a trust presents a whole host of new issues for the attorney making the will or the trust and for the surviving spouse or surviving beneficiaries who later wish to challenge or enforce the will or trust. Accordingly, great care should be exercised to confirm the actual state of mind and the actual capacity of the person making the will or trust. Moreover, the more complex the will or trust the more the trial court or a later appellate court will require in the form of evidentiary proof that the person making the instrument fully understood the effect of their actions in creating and executing the estate document.

For further guidance regarding the above, the reader is encouraged to contact the legal offices of Catanese & Wells, A Law Corporation at www.cataneselaw.com or by telephone at (818)707-0407.