LACK OF MENTAL CAPACITY
A living trust, a will, or any document for transfer of interest in a real property or creating lien on the real property may be contested and declared void due to the lack of mental capacity of person signing the document. The question is whether the affected party had the prerequisite capacity to execute the document. Most litigation pertaining to the lack of mental capacity are initiated after the death of party signing the document. The issue of mental capacity pertaining to creating a living trust is generally the same as for creating a will or for any document related to transfer of interest in a real property.
To create a trust, create a will, or for transfer of interest in a real property, a person must have the mental capacity to sign the related documents. The affected party is presumed sane and competent when he or she signs the related documents. The person contesting the living trust, contesting the will of decedent, or contesting documents for transfer of interest in the real property, has the burden of proof that the the affected party lacked mental capacity at the time he or she executed the document. If the affected party had mental disorder, but had lucid periods, there is a presumption that the document was executed during the lucid period.
Due process requires determination of mental capacity of the affected party at the time of execution of document. Under California laws, a person who has a mental or physical disorder may still be capable of performing variety of action. Depending on the mental or physical disorder, and the act performed by the affected party, the affected party may enter into a contract, transfer his or her assets, marry, make medical decisions, vote, or execute a living trust or a will.
Probate Code §820 states that except where otherwise provided by law and the statutory and decisional law of testamentary capacity, a person lacks the mental capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following:
(a) The rights, duties, and responsibilities created by, or affected by the decision.
(b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision.
(c) The significant risks, benefits, and reasonable alternatives involved in the decision.
Probate Code §811(a) requires trial to determine a deficit of mental condition in any of the followings:
(1) Alertness and attention.
(2) Information processing.
(3) Thought processes.
(4) Ability to modulate mood and affect.
The mental capacity of the affected party could be shown by the testimony of his or her medical doctors, psychiatrist, attorney that prepared the document under the affected party’s instruction, and the witnesses when affected party signed the document.
The fact that the affected party is under conservatorship is not by itself a factor to determine his or her mental capacity. Nor that the ability of affected party to transact business would determine his or her ability to sign the document.
Other factors that may be considered to determine the mental incapacity, but may not determine the mental condition conclusively, are history of mental disorder, dementia, and alcohol and drug abuse.
The most important is that the lack of mental capacity must be shown to have existed at the exact time that the document was signed by the affected party. If the lack of mental capacity is shown, then the document will be declared void by the court.
For more information call us at (310)553-5562.
A living trust, a will, or any document for transfer of interest in a real property or creating lien on the real property may be contested and declared void due to the lack of mental capacity of person signing the document. The question is whether the affected party had the prerequisite capacity to execute the document. Most litigation pertaining to the lack of mental capacity are initiated after the death of party signing the document. The issue of mental capacity pertaining to creating a living trust is generally the same as for creating a will or for any document related to transfer of interest in a real property.
To create a trust, create a will, or for transfer of interest in a real property, a person must have the mental capacity to sign the related documents. The affected party is presumed sane and competent when he or she signs the related documents. The person contesting the living trust, contesting the will of decedent, or contesting documents for transfer of interest in the real property, has the burden of proof that the the affected party lacked mental capacity at the time he or she executed the document. If the affected party had mental disorder, but had lucid periods, there is a presumption that the document was executed during the lucid period.
Due process requires determination of mental capacity of the affected party at the time of execution of document. Under California laws, a person who has a mental or physical disorder may still be capable of performing variety of action. Depending on the mental or physical disorder, and the act performed by the affected party, the affected party may enter into a contract, transfer his or her assets, marry, make medical decisions, vote, or execute a living trust or a will.
Probate Code §820 states that except where otherwise provided by law and the statutory and decisional law of testamentary capacity, a person lacks the mental capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following:
(a) The rights, duties, and responsibilities created by, or affected by the decision.
(b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision.
(c) The significant risks, benefits, and reasonable alternatives involved in the decision.
Probate Code §811(a) requires trial to determine a deficit of mental condition in any of the followings:
(1) Alertness and attention.
(2) Information processing.
(3) Thought processes.
(4) Ability to modulate mood and affect.
The mental capacity of the affected party could be shown by the testimony of his or her medical doctors, psychiatrist, attorney that prepared the document under the affected party’s instruction, and the witnesses when affected party signed the document.
The fact that the affected party is under conservatorship is not by itself a factor to determine his or her mental capacity. Nor that the ability of affected party to transact business would determine his or her ability to sign the document.
Other factors that may be considered to determine the mental incapacity, but may not determine the mental condition conclusively, are history of mental disorder, dementia, and alcohol and drug abuse.
The most important is that the lack of mental capacity must be shown to have existed at the exact time that the document was signed by the affected party. If the lack of mental capacity is shown, then the document will be declared void by the court.
For more information call us at (310)553-5562.
