Capacity Make Trust or Will Essentially, one must understand:
| Presumption of Mental Capacity Will challenges are rare and successful ones rarer still. Courts presume that a Will writer was of sound mind; a challenger must prove incapacity. In a recent case called Parish v. Parish (Va. 2011), the Supreme Court of Virginia concluded that although a person may be declared legally incompetent, he or she may nonetheless possess the requisite capacity to execute a valid Last Will and Testament. Eugene Neal Parish suffered a head and spinal cord injury in 1982 after being struck in the head with a metal pipe while at a bar. The injury left him paralyzed in his legs and right arm. Eugene was declared incompetent by a Florida court. In 2002, while Eugene was living in the Estate of Tennessee, Eugene’s conservator, David Wayne assisted Eugene in preparing a Last Will and Testament. The conservator testified that Eugene had informed him “out of the blue” that he wanted a Will. During the meeting with the paralegal who drafted the Will, David Wayne acted as a translator because Eugene, who spoke through a voice box due to a tracheotomy, was difficult to understand. David Wayne was present in the room with the witnesses and the notary when the Will was executed and witnessed in 2002. Eugene moved to Virginia and died in 2006. Eugene bequeathed only 25% to his son, 50% to the two conservators, and the other 25% to other family members. The son challenged the Will. Diane, one of the two conservators at the time of the executor of the Will, was named executor under the Will. Eugene’s son was appointed administrator of the estate. It was held that the proponent of a Will is entitled to a presumption that testamentary capacity existed by proving compliance with all statutory requirements for the valid execution of the Will. Since the proponent of the Will was able to prove compliance with the statutory requirements of Tennessee law, the burden shifted to the other party to prove that Eugene lacked testamentary capacity. The Virginia Supreme Court held that Eugene’s adjudications of incompetence due to encephalopathy and the attendant appointments of conservators did not create a presumption of testamentary incapacity and that his Will was valid. In the case of a revocable trust, usually the capacity required to create a trust, is the capacity of making a contract. This is a higher standard than for a Will. It requires that the grantor understand and appreciate the rights, duties and responsibilities created by or affected by the decision. In addition, it requires understanding the probable consequences for the decision maker and, where appropriate, the persons affected by the decision. Finally, it requires understanding the significant risks, benefits, and reasonable alternative involved in the decision. |