Unlike the standard governing the capacity to make a will, California courts have not applied a uniform standard in evaluating the capacity necessary to execute a trust instrument. In Andersen v. Hunt, 11 C.D.O.S. 7265, the Second District Court of Appeal acknowledged the conflicting authorities on trust capacity and concluded the requisite level of capacity depends on the complexity of the trust instrument at issue. In doing so, the court fundamentally altered how trust capacity cases will be litigated. Under Andersen, the applicable standard of capacity is a question of fact, rather than a question of law. Thus, the Andersen decision provides an opportunity for parties to build a record that will cause the court to employ a favorable standard of capacity.

The mental capacity required to make a will is relatively low. Testators do not need to be able to transact important — or even ordinary — business. Rather, as provided by Probate Code §6100.5, a testator has the capacity to make a will if, at the time the will was made, he can (1) understand the nature of the act he is undertaking, (2) understand and recall his property, and (3) remember — and understand his relations to — his living descendants, spouse and parents, and those whose interests will be affected by the will. This standard of capacity is generally referred to as “testamentary capacity.”

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