Mental Capacity to Make a Trust

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A Trust Can Be Set Aside and Disregarded if a Court Finds that a Trust Maker Lacked Capacity

PRESUMPTION OF CAPACITY

California law presumes that everyone has the mental capacity to make a trust.  Thus, if someone challenges a trust in court for lack of mental capacity it is up to the challenger to prove lack of capacity with sufficient evidence.

CAPACITY TO MAKE A TRUST

Generally speaking, the legal rules to prove that a person is competent enough to execute a trust are more stringent then the rules as to competency to make a will. A trust is considered a contract and the law has higher standards for capacity to make contracts.  That capacity means that a person has the ability to communicate verbally or by any other means and to understand and appreciate (i) the rights, duties, and responsibilities created by or affected by the trust; (ii) the probable consequences for the decision-maker and the persons affected by the decision; and (iii) the significant risks, benefits, and reasonable alternatives involved in the decision.

CONTRAST THE CAPACITY TO MAKE A VALID WILL

A person must be at least 18 years old and of sound mind to make a will. A person is not mentally competent to make a will if at the time of making the will (i) he or she does not understand the nature of the testamentary act, (ii) does not understand and recollect the nature and situation of his or her property, (iii) and does not remember or understand his or her relations to living descendants, spouse, parents, and those whose interests are affected by the will.  Also a person is not mentally competent to make a will if he or she suffers from a mental disorder with symptoms including delusions or hallucinations, which result in his or her devising property in the will in a way which except for the existence of the delusions or hallucinations he or she would not have done.

CHALLENGING THE VALIDITY OF A TRUST

California law allows challenges to the validity of trusts to be brought in the civil department or the probate department of the superior court. A trustee or a beneficiary of a trust may file a petition in the probate department either to determine the existence of the trust on grounds of lack of capacity or other issues such as undue influence or fraud. There are various legal factors which attorneys consider in determining whether to file a trust case as a civil case or as a probate court case.   There are many technical rules and time deadlines involving trust contests so you will need to consult with skilled legal counsel to make a valid challenge.

LEGAL EFFECT IF IT IS PROVEN THAT THE TRUST MAKER LACKED CAPACITY

Proven lack of mental capacity makes a trust void and invalid. The instructions for distribution in the trust would then be disregarded. The consequence of a trust being invalid is that the deceased person’s money and property will probably have to be subject to a probate proceeding.  Unless there is a valid will, the deceased person’s property would be distributed through a probate court proceeding according to the laws of “intestate succession”.  Those laws provide guidelines for distribution. For example, if a person dies with a surviving spouse and no children, then the spouse receives the entire estate. If a person dies with a surviving spouse and one child then the estate is split 50-50. If there is more than one child then the estate is divided one third to the surviving spouse and two thirds amongst all the children.

CALL  (949) 229-7034  to speak with Lawyer  David L. Crockett

PROOF OF CAPACITY PRIOR TO MAKING A WILL OR TRUST

If a person wanting to make a will or trust has questionable mental capacity, it is advisable to have that person tested by a licensed mental health professional. The mental health professional will then make a report and/or fill out a court form having to do with capacity as a backup to the attorneys file.  If the report indicates the person does have the proper legal capacity, then that is good evidence to have available to defend against a will contest or trust contest case.  If the person lacks capacity then there are other legal alternatives to still make a will and to make a trust to avoid probate.  The other legal alternatives are more involved but may still be preferable to having to face a will contest proceeding.

Conveniently located in Newport Beach near the John Wayne Airport

We are located near the Orange County California John Wayne Airport. My office is catty-corner from Fletcher-Jones Motorcars; —right behind the rear entrance of Newport Lexus on Dove Street. Here is a picture of my office building and a Google Map to get your bearings.

Attorney, Certified Public Accountant & Real Estate Broker

  

  

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