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March 2018 Archives

Trust Disputes -- Testamentary Capacity to Make a Trust

Buffington Law Firm's Trust dispute and breach of contract attorneys often deal with issues of mental capacity when representing parties in cases involving disputes involving the validity of trusts.  As discussed in last week's Blog article, the mental capacity to make a will is generally held to be a lower standard than is the standard for mental capacity to make a contract.  So the question arises, which standard applies to the capacity to make a Trust.  After all, in California and many other states trusts are becoming much more common as the means for persons to carry out their testimonial intents.  Probate Code Section 6100.5 sets forth the standard for determining capacity to make a will.  On its face this statute only applies to wills and not trusts.

Testamentary Capacity versus Capacity to Contract -- The Difference

Buffington Law Firm's Trust and Elder Law attorneys are sometimes faced with situations that deal with the issue as to whether a person has the mental capacity to make a contract or, alternatively, testamentary capacity -- the ability to make a will or trust.  To the layperson this may seem straightforward -- it may seem as though a person either has mental capacity or he or she does not.  However, under the law, generally, the required mental capacity to make testamentary decisions is lower than the mental capacity required to make contracts.

Protection of Elders from Involuntary Mental Status Examinations

Buffington Law Firm's team of Elder, Trust, and Undue Influence attorneys often deal with controversies involving the mental competence of Elders. (As used herein, the term "Elder" shall have the meaning set forth in the Welfare & Institutions Code: A California resident 65 or older.) It is very common in Trust and other forms of Elder litigation that one party or other will allege that another party, often an elderly person, lacks mental competence, i.e. the mental competence to execute testamentary documents or the competence to contract. While this may sometimes be a legitimate issue in litigation, sometimes this is a litigation tactic which, if successful, can be extremely intrusive and distressful to the subject Elder.

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Buffington Law Firm, PC
8840 Warner Avenue Suite 300
Fountain Valley, CA 92708

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