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HAVENS MALCZYNSKI GRIGOLLA, LLP

Can Someone Deemed Incompetent Change His or Her Will or Trust?


It’s possible for someone to be deemed incompetent to change his or her will or trust. It would depend on the level of capacity that they have. Competency or capacity is not a yes or no determination. There’s a whole bunch of grey area in between. If we imagine a person who is perfectly capable of doing anything and has full mental capacity at one end of the spectrum and at the other end of the spectrum, someone who has literally no conscious ability. There’s this whole spectrum in between.

Different transactions fall at different places along that spectrum. Contracting is fairly high level in that one has to have to enter into a contract. But making a will, testamentary intent, is very low on that spectrum. The only thing that we have to show that a person understands, in order to have sufficient capacity to make a will is that they have to have a general understanding of their estate, what his or her assets are and where his or her assets are. It doesn’t have to be precise. But he or she needs a general understanding of what he or she owns, and he or she must have knowledge of the people who are the natural object of his or her bounty (the family members), who is it that a person would normally assume that that person would leave his or her estate to and he or she would have to know who those people are. It doesn’t mean that he or she have to leave his or her estate to them; it’s just that he or she has to acknowledge them.

If I have four kids and I want to leave all of my estate to one of them, I can do that as long as I realize I have four kids and I am going to disinherit three of them and leave it all to one. As long as that’s my decision, I can do that. So, the level of capacity required for a will is fairly low. That’s one reason why undue influence is so difficult to prove because we don’t have to show a very high level of functionality in order for the person to be able to make changes.

Is there a different burden of proof if undue influence is suspected when it is a will or a trust versus gifts or transfers?

The level of capacity and the method of proving the capacity really isn’t different. As I eluded to earlier, the only real difference is the difference of immediacy of that gift and how that present gift can harm the victim because they no longer have that resource for their benefit. If the gift is only something that’s going to be made in the future when they pass away, then they still have the resource for their own uses during their lifetime. So the only difference is whether that is an act that immediately causes harm to the victim or whether it causes this harm to the victim’s estate in the future.

I Want To Disinherit My Family And Leave Everything To My New Spouse Or Partner. How Can I Avoid The Appearance Of Undue Influence?

One thing is actually with spouses, there’s not as high of a burden, there’s not this presumption that a spouse is causing undue influence like it would be for a child or a stepchild. However, to avoid that appearance, there are two things that you could do. Which one I would recommend, or both, would depend on the person’s likelihood of being deemed to be incompetent. The first thing I would do in all situations is to do what’s called a “Certificate of Independent Review”.

This is a process in which the person who’s making the change goes to another independent attorney and discusses all the issues with that independent attorney – just that person is making the changes and the attorney, no one else. And that attorney has to sign a certificate that says that the person making the change, in their opinion, has capacity, understands what they’re doing and is freely making this change. And that’s a very good step to take.

Secondly, the person could also go and have a physical and/or mental exam and get an opinion from the doctor that they have capacity and their level of capacity. With those two things in hand, it would be very difficult to challenge those changes based on undue influence.

Is There Anything Else Regarding Undue Influence That We Should Cover Today That We Haven’t Yet Touched On?

Just one other thing, and that is, if you suspect that there’s undue influence, take action. Don’t be worried about the emotional issues with the family and the potential troubles. If you have a suspicion of undue influence, you need to act in order to protect that victim. We see far too many situations where the family thought it was happening but was afraid to speak up, was afraid to call someone and the results were tragic. If you think it’s there, check it out. If it’s not undue influence, then no harm is done. And it’s worthwhile to do that to protect this person.

For more information on Estate Planning In California, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (626) 385-6303 today.

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