How capacity to sign estate planning documents is evaluated

Start with the particular document

In Minnesota, for example, creating, amending or revoking a revocable trust, or directing its trustee, requires the same capacity as making a will. Other states differ.

In Florida, Raimi v. Furlong describes will capacity as general understanding of the property being disposed of, the people naturally claiming a substantial benefit, and the will's practical effect.

That capacity must exist when the will is executed. Failing memory, an enfeebled mind or vacillating judgment need not prevent it. This is a will standard, not a standard for every transaction. Other states differ.

For comparison, the federal court in Florida's Taghadoss v. Bank of America described transaction incapacity as inability to understand the effect and significance of one's actions in a real estate transaction.

The court was testing the complaint on a motion to dismiss, not deciding the merits or finding the transaction invalid. Other states differ.

Focus evidence on the signing moment

In New York, Matter of Sook Li describes will capacity as generally understanding the nature and consequences of making a will, the nature and extent of the property disposed of, and the natural objects of one's bounty.

The focus is capacity at execution. Earlier or later evidence matters only insofar as it bears on the person's mind at that exact time.

The opinion recognizes a lucid interval during an ongoing diagnosis of mental illness or progressive dementia. Progressive dementia alone does not preclude will capacity. Other states differ.

The court dismissed the capacity objection. That result does not establish that the will was admitted to probate.

The evidence considered included medical records from multiple providers, prior wills, correspondence, payment evidence and witness testimony. Later neurological notes did not establish a lack of rationality, lucidity or competence at execution.

This case illustrates evidence considered in a dispute. It does not establish a right to obtain medical records.

Connect a concern to the decision

In California, Probate Code §810 creates a rebuttable presumption of capacity affecting the burden of proof for that statutory part. A mental or physical disorder does not necessarily prevent executing a will or trust.

A judicial incapacity determination for a particular act should rest on evidence of mental function deficits rather than diagnosis alone. Other states differ.

Under California §811, a court's incapacity finding requires evidence connecting at least one listed mental function deficit to the particular act or decision.

Alone or together with other deficits, it must significantly impair understanding and appreciation of that act's consequences. Examples include orientation, concentration and planning in one's rational self interest. These examples are not the complete statutory list.

The court may consider impairment's frequency, severity and duration. Diagnosis alone is insufficient.

These provisions govern evidence presented to, and findings made by, a court determining capacity for a particular act or decision. They do not alter the separate statutory process identified in Health and Safety Code §1418.8.

They also do not change documentation burdens or potential liability for health care providers determining medical decision capacity outside court. Other states differ.

Communication and understanding under California law

California §812 addresses communicating a decision verbally or by any other means and understanding and appreciating its relevant rights, duties and responsibilities.

It also addresses probable consequences for the decision maker and, where appropriate, affected people, plus significant risks, benefits and reasonable alternatives. Understanding and appreciation apply to the extent relevant.

The provision expressly yields to other law, including §813 and statutory and decisional will capacity law. It cannot replace every will or medical decision standard. Other states differ.

Two related terms

Testamentary capacity means capacity to make a will.

Undue influence, in the New York will example, means coercion restraining independent action and destroying free agency or overcoming the person's free will. The stated elements are motive, opportunity and actual exercise of undue influence, and other states differ.

EstatePlanner.com resources to open next

• Incapacity planning documents and questions checklist

  Use this before a planning meeting to organize the documents and questions you want to discuss alongside capacity concerns.

• Estate dispute records and questions checklist

  If a signing is already disputed, open this to organize questions about document versions, execution witnesses and relevant medical evidence.

• How standing and deadlines shape estate and trust disputes

  Open this for the separate questions of who may bring a dispute and which deadlines need review.

A perspective on starting the conversation

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