Two grounds commonly used for challenging a will or trust are lack of capacity/incompetence and undue influence.
Generally, adults with the requisite mental capacity at the time they create or amend their estate plan may dispose of their property as they wish without regard to the expectations of their heirs or anyone else. In California, an adult is presumed to be competent, and anyone challenging this presumption has the burden of proving otherwise.
The standard for capacity to make a will (“testamentary capacity”) is relatively low: It is met by people who can understand the nature of the act they are doing; can understand and recall the nature and situation of their property; and know, and understand their relationship to, the natural objects of their bounty and the persons affected by the document. But for most trusts, capacity requires that people understand and appreciate the rights, duties, and responsibilities created or affected by their decision; the probable consequences to themselves and others of their decision; and the significant risks, benefits, and reasonable alternatives involved in the decision (“contract capacity”). As for trust amendments, only testamentary capacity is required for those that are similar in “content and complexity to a will,” whereas those that produce more than simple changes to the disposition of property on death are likely to require contract capacity.
A determination that a person lacks capacity generally requires a showing that there is some deficit in mental function and a connection between that deficit and the questioned conduct. That a person is the subject of a guardianship or conservatorship does not conclusively establish that the person lacks testamentary capacity, especially where there is evidence that the person’s mental condition has improved since the appointment of a guardian or conservator. Also, if a person has a mental disorder during which he or she has lucid periods, California presumes that a testamentary act was done during a period of lucidity. As one California court said, “[O]ld age or forgetfulness, eccentricities or mental feebleness or confusion at various times of a party making a will are not enough in themselves to warrant a holding that the testator lacked testamentary capacity.” On the other hand, once it is determined that a lack of testamentary capacity exists due to a condition that is continuous and becomes progressively worse (such as senile dementia), there is a strong inference that such incapacity continued forever after.
Persons who would benefit from an estate plan may try to influence the person making or amending that plan as long as such influence is not “undue.” Influence that directly brings about the contested will or trust and overpowers the mind and free will of the person making that instrument is undue.
As with lack of capacity, the person claiming undue influence has the burden of proving it. But the burden can shift where: (1) There was a relationship of trust and confidence between the alleged influencer and alleged victim; (2) the alleged influencer actively participated in obtaining the execution of the challenged document; and (3) the alleged influencer unduly profited by the challenged document. If the presumption arises, then the alleged influencer has the burden of showing that the challenged document was free from undue influence. If the trust is an irrevocable trust, the presumption may arise even without proof of a confidential relationship where other factors suggest coercion. There also are special undue influence rules in California in certain situations, such as where the alleged influencer is a caretaker of the alleged victim or where the alleged influencer actually drafted the estate plan or amendment or signed or witnessed it on behalf of the alleged victim.
California statutes provide that, in considering whether there has been undue influence, a court must consider all of certain factors, including: (1) The alleged victim’s vulnerability to influence; (2) the alleged influencer’s apparent authority over the alleged victim; (3) the alleged influencer’s conduct; and (4) the equity of the challenged estate plan, evidence of which may include any change from the alleged victim’s prior intent and the appropriateness of any change in light of the length and nature of the relationship between the alleged victim and the alleged influencer.
Undue influence does not require a showing that the alleged victim lacked capacity. But usually some showing of an impaired mind (which may not amount to a complete lack of capacity) is part of a successful undue influence challenge. This is because people in a weakened state of mind are more susceptible to having their free will overcome.
Jim Bush has been involved in trust and estate litigation on both sides of lack of capacity and undue influence questions. If you suspect that a trust or will in which you have, or may have had, an interest has been the result of someone wrongfully taking advantage of the person who made the estate plan, or if someone has accused you of engaging in such conduct, please contact Jim for an initial no-charge conference to discuss the matter.
*The law in this area frequently evolves. This discussion is meant only to set out current general principles, which are subject to exceptions as well as to change by statute and by case law. You should not rely on this discussion in addressing your legal obligations and rights or your legal questions but should instead consult an attorney.