16th Dec 2014
Under California law, it is understood that there are two tests for capacity to make an estate plan, although court rulings in this area are not very definitive.
The capacity to make a Will is considered the lowest capacity in the law, and it is set forth in California Probate Code Section 6100.5. Under this section the testator must (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of their property, and (C) remember and understand their relations to living descendants, spouses, parents, and others affected by the Will.
The capacity is make a Living Trust is higher, and the additional tests for capacity are found in Probate Code Section 812. The individual must be able to communicate their estate planning decision, and understand and appreciate: (A) The rights, duties and responsibilities created or affected by their decision, (B) the probable consequences both for the decision maker and those affected by the decision, and (C) the significant risks, benefits, and reasonable alternatives involved in the decision.
Dwight Edward Tompkins,
Estate Planning Lawyer