Estate planning attorneys often ask their clients for their reasons behind why they want to distribute their estate in the way the way they describe. That is especially true when the distribution differs from how the California Probate Code otherwise distributes the estate in the absence of a will or trust. Why does the attorney need to hear the client’s explanation?

First, the attorney needs to make the client aware when the client makes a distribution that differs from what California law provides for the client’s heirs. An attorney will document the legal file with proof that the client both understood what he or she was doing and acted of his or her own free will. That may include a handwritten letter signed by the client stating his or her intentions and relevant background facts.

Second, heirs or existing beneficiaries who then receive less may later bring a lawsuit to overturn the executed estate planning documents. The lawsuit may allege that the person executing the estate planning documents lacked capacity to do what they did and/or allege that the person acted under undue influence, i.e., did what someone else told them to do.

A successful lawsuit might restore a prior estate planning document (i.e., a prior will or trust) or have the estate distributed to the surviving heirs as though the person had died with no will or trust, i.e., intestate succession. Such a lawsuit may either occur while the person is incapacitated, or after the person dies.

California has different standards of capacity depending on the nature of the act in question. Wills have a simple standard and trusts have a more complex standard to meet.

For a will, “an individual is not mentally competent to make a will if at the time of making the will either of the following is true: (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will. (2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done. [Probate Code Section 6100.5]

For trusts, California uses a multi-step approach to determining a person’s capacity. It presumes that, “… all persons have the capacity to make decisions and to be responsible for their acts or decisions [Probate Code section 810].” That presumption, however, is rebuttable. The person trying to overcome the presumption has the burden of proof (evidentiary burden).

Overcoming the presumption requires evidence of one or more deficits in the person’s mental functions and evidence that such deficits were relevant to the decision or action.

Four (4) mental functions are examined: (1) Alertness and Attention [i.e., is the person aware of themselves and their surroundings, themselves, their time and place, and able to concentrate]; (2) Information Processing [i.e., does the person have sufficient memory including immediate recall; is he able to understand or communicate, is he able to reason and to reason and to plan logically]; (3) Thought Processes [i.e., does the person have hallucinations or delusions or repetitive and uncontrollable thoughts], and (4) Ability to Modulate Mood and Affect [i.e., does the person suffer from anxiety, depression, euphoria, panic, despair, etc., that is inappropriate to the person’s situation]. [Probate Code section 811]

A mental deficit alone is not enough. The deficit must relate to the decision or the action at issue. For example, hallucinations without any bearing as to why a person gifted his or her estate the way he did is simply irrelevant to the person’s capacity to do so.

In addition, California law requires that, “a person has the ability to communicate, either verbally or by any other means, the decision in question, and to understand and appreciate, to the extent relevant, all of the following: (a) The rights, duties and responsibilities so created or affected. (b) The probable consequences of the decision to all affected. (c) The significant risks, benefits and reasonable alternatives involved.” [Probate Code section 812]

With regards to undue influence, it is important that the attorney meet with the client alone, sufficiently to establish that the client is acting freely. Otherwise, it may later be argued that someone else — who was also present during the meeting — was actively involved in procuring the estate plan. Likewise, beneficiaries should not be present when the estate planning documents are signed.

The foregoing precautions are taken while someone is still alive. Otherwise, it becomes more likely that a disgruntled heir or beneficiary will see more reason to contest the deceased person’s will or trust.