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Determining Capacity - a True Story | CA Trust & Estate Litigation

Determining Capacity | CA Estate & Probate Litigation

In trust and estate litigation, the determination of capacity is not always clear - but then again - sometimes it is really clear.

I like to tell stories. When it comes to law stories, I have to protect the attorney-client privilege by changing certain details of the story without losing the essential lesson.

A couple years back, as a 65-year old attorney, I took a call from a woman named Jill. Jill explained to me that she was calling on behalf of her friend, a ninety-year old widow named Martha. Jill told me that Martha wanted to change her very substantial trust and name Jill as the trustee. I learned that Martha lived in her home with a caretaker, could no longer drive and she would rely upon Jill to take her to an appointment at my office.

A few days later, Martha arrived with Jill. Martha was well dressed and dignified in manner. I let Jill know that I would have to meet with Martha alone.

Martha sat across from me at our conference table. As we began our conversation she looked me up and down and said, "I like what I see." "Uh oh," I thought. "I haven't been told that in a long time - I don't think she has capacity." Nevertheless I went on. "Martha, I understand that you want to move from your home." Martha confirmed this and said that she wanted to live on the beach in Tahiti. "So, do you want to buy a condo or a house on the beach?" I asked. "Oh no," Martha replied, "I want to live on the beach - maybe in a tent or something."

Well, it didn't take me long to informally determine Martha's capacity - at least from where I stood, she didn't have it. I thanked Martha for her time and let her know that I wouldn't be preparing any trust amendments.

If you have questions about a case in your family involving capacity, elder financial abuse, or a disputed estate or trust, you can call us at Hackard Law. We work throughout California, including Sacramento, Los Angeles, the Bay Area, and San Diego. Call us today at 916-313-3030. Protecting client interests is our priority number one, and we'll be happy to hear your story.

Determining Capacity - a True Story | CA Trust & Estate Litigation from Hackard Law on Vimeo. Image Credit: MGM.

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