Competency in California law: Double standard for wills and trusts?

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Understanding Testamentary Capacity: Requirements under CA Probate Code Section 6100.5

Let’s start with wills.  CA Probate Code Section 6100.5 states:

“(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.”

Delusions versus False Beliefs in Testamentary Acts

In addition, even if the testator does have the capacity to do all the above under A) to C) but is suffering from delusions or hallucinations, she may not be competent. A false belief, if tethered to facts, however, is not a delusion: “If there is any evidence, however slight or inconclusive, which might have a tendency to create a belief, such belief is not a delusion.” (Estate of Alegria (1948) 87 Cal.App.2d 645, 655.) This was recently affirmed in Eyford v. Nord (2021) 62 Cal.App.5th 112 [March 18, 2021].

Elevated Capacity Requirements: CA Probate Code Section 810 – 812 Explained

CA Probate Code Section 810 – 812 creates a higher, sliding-scale, complicated test which may be more relevant for complicated trust instruments.

811 “(a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question …”

The statute continues with a long list of psychological concepts and constructs which could have been taken from a Neuropsychology textbook.

The requirements for contractual capacity (including complicated trusts)

Indeed, practicing lawyers have trouble knowing when one or the other standard should apply.

Quite simply, the standards for testamentary capacity and contractual capacity have diverged and complex trusts are more contract-like in nature. More is expected for the capacity to contract than for the capacity to make a will. The Hon. Elaine Rushing, (Ret.) breaks it down as follows (reference here).

1. – Make a simple will Probate Code 6100.5  
2. – Make a complex will Probate Code 6100.5
3. – Make a simple trust Probate Code 6100.5
4. – Make a complex trust Probate Code 810-812
5. – Make simple amendments to a complex trust Probate Code 6100.5
6. – Make complex amendments to a complex trust Probate Code 810-812
7. – Open a joint tenancy bank account Probate Code 810-812
8. – Change beneficiary designations on a life insurance policy Probate Code 810-812

The sections 810-812 of the CA Probate code are also known as the “sliding scale for contractual capacity”.

The Client with Diminished Capacity in California

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