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Trust Litigation: Proving Incapacity

by | Dec 14, 2022 | Firm News

When trust litigation attorneys examine the factual and legal basis for whether grounds exist to contest a California Living Trust, usually the threshold issue concerns the mental status of the trustmaker (“trustor”) when he or she created the instrument to be challenged.  Generally, when the objective is to cause a court to set aside a written testamentary instrument the question is whether the trustor simply lacked capacity to create the instrument in question, or whether, alternatively, the theory is that the trustor was the victim of  Undue Influence.  In this brief Blog article we will examine the legal issues involved in a finding of incapacity and why this is not the usual ground for setting aside a trust, trust amendment, or other testamentary document.

The simplest legal ground from a conceptual standpoint for contesting a trust, trust amendment, or other testamentary instrument is an allegation that the maker simply lacked the legal capacity to create the instrument.  If the Court finds this to be the case, the legal instrument can be set aside.  However, in a practical sense incapacity is very difficult to prove.  Firstly, California Probate Code section 810(a) creates “a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.” [California Probate Code Section 810(a)].  Case law further establishes that anyone seeking to prove outright capacity must bear a very heavy burden, to wit:

  • “[T]he standard for testamentary capacity is exceptionally low.” (In re Marriage of Greenway(2013) 217 Cal.App.4th 628, 642.)
  • “Testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral or mental irregularities or departures from the normal unless they bear directly upon and have influenced the testamentary act.” [Estate of Lingenfelter (1952) 38 Cal.2d 571, 581].
  • In Estate of Mann [(1986) 184 Cal.App.3d 593], the testator was a 94 year old woman who, despite being on conservatorship and having moderately advanced senility was found to have capacity to execute her will which left the bulk of her estate to one nephew, to the exclusion of another. “It has been held over and over in this state that old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.” [Estate of Mann at 603].

For a time, there was some authority to the effect that for California living trusts, the standard for capacity was akin to the capacity to make a contract, which is higher than the mental capacity necessary to make a will.  No more.  In determining capacity to execute a trust amendment that “in its content and complexity, closely resembles a will or codicil,” the courts have held that the lower mental capacity standard for the making of a will should apply. [Andersen v. Hunt (2011) 196 Cal.App.4th 722, 731; see Andersen, at pp. 729–730].  And from a practical standpoint, most of the time when the objective is to set aside a trust or trust amendment, we are dealing with precisely that: a straightforward testamentary gift/disposition that the petitioner seeks to challenge.

Andersen, supra, essentially establishes something akin to a “sliding scale” for capacity.  If the testamentary instrument being challenged is a simple disposition, i.e. this person is disinherited, that person takes the estate, etc., the very low standard of testamentary capacity (which is lower than the standard for making a contract) applies.  If the subject trust amendment or other testamentary document is more complex, with intricacies such as springing provisions based upon complicated contingencies and so forth, a Court will apply a higher threshold of competence.  But normal testamentary dispositions in a trust are not subject to the higher standard of competency of a contract merely because such dispositions are contained in a trust.

California Probate Code Section 811 provides a long list of factors to be considered when determining testamentary capacity.  Somewhat simplified, to determine if a person had or has testamentary capacity the courts will consider whether the person knows and remembers the natural objects of his or her bounty, e.g. spouse, children, whether the person has some idea as to what property is being disposed of and the extent of his or her estate, whether the person is (or was) well-oriented in time, place, and purpose, and whether (and to what extent, if at all) the person is subject to delusions or intrusive thoughts.  A court will evaluate these factors in light of their effects upon the person’s ability or inability to understand the consequences of the effect of the testimonial act in question.  Thus, for example, if a court found that a person had no knowledge of his or her spouse or children, was not oriented in time and place, and had delusions that motivated the testimonial disposition in question, the court might (and should) render a finding of incapacity.

The bottom line of all this is that outright incapacity is difficult to prove in trust (or will) litigation.  A person does not need to be “all there” mentally in order for a court to find that he or she had capacity.  A person who recognizes his or her children and/or spouse and has a general (even if somewhat vague) understanding of his or her estate, will likely be found competent to make testamentary dispositions even if these seem unwise or irrational so long as the court finds that the person had the ability to understand what he or she was doing and the consequences thereof.  The Petitioner has the burden of proof to refute a finding of capacity.  [Cal. Probate Code Section 810(a) supra].  In trust litigation more often than not the subject person is deceased.  This can make the problem of proof extremely difficult unless the subject person was under the care of a physician or psychologist who evaluated that person’s mental status.  Even then, California Probate Code Section 811 (d) retains the rebuttable presumption that the person had the necessary capacity.  It states: ”[t]he mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.”  [Cal. Probate Code Section 811(d)].

The above brief legal analysis makes it clear that incapacity is often or usually not a practical ground for seeking invalidity of a testamentary document such as a trust amendment.  More often, the appropriate ground is undue influence.  Undue influence does not presuppose or require a finding that the subject person lacked testamentary capacity, although dementia or other forms of weakness of mind can strengthen a case of undue influence.

If you are involved in or are contemplating a trust, will, or other testamentary contest or dispute, Buffington Law Firm’s team of trust and inheritance litigation attorneys invites you to contact us for a Free Legal Consultation.  All consultations are with an experienced trust litigation attorney, are fully protected by the attorney-client privilege, and there is no obligation.