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Testamentary Capacity to Execute Trust Amendments

Testamentary capacity to execute trust amendments may be governed by Probate Code section 6100.5 or sections 810-812. Probate Code sections 810-812 require a higher standard of capacity as compared to section 6100.5, which requires a lower standard of testamentary capacity. The appropriate probate code section to be used is largely determined by the complexity of the trust amendment. This is illustrated in Anderson v. Hunt.

In Anderson v. Hunt, the decedent made four amendments dealing with percentage changes to his trust estate in favor of his long-time girlfriend (respondent). The decedent's children (petitioners) sought to invalidate the amendments by alleging that the decedent lacked testamentary capacity and was under the respondent's undue influence. The trial court evaluated the decedent's capacity to execute the trust amendments under the provisions of Probate Code sections 810-812. Based on the court's evaluation, it has been determined that the decedent lacked capacity thereby nullifying the trust amendments. The respondent appealed the trial court's decision.

The Court of Appeal held that Probate Code section 6100.5, which requires a lower standard of capacity, should have been used in evaluating the decedent's capacity to execute the trust amendments. The percentage changes made to the trust estate were not deemed complex and therefore made the amendments indistinguishable from a will or a codicil. Probate Code section 6100.5 only addresses capacity to create a will or codicil; however, this can also be applied to trusts and trust amendments that are similar to wills and codicils, through section 811. Accordingly, the Court of Appeal held that due to the simplicity of the trust amendment, the trial court should have evaluated the decedent's capacity under section 6100.5. The trial court's decision was reversed.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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