Wills v. Trusts: Different Capacity Standards

You might have heard of cases in which someone tried to challenge an elder relative’s will. They might have tried to argue, “Hey, I’ve seen them forget my name over and over again. It’s like they don’t even recognize me! And they totally forgot to flush the toilet again after I reminded them for the tenth time. I heard that they wrote their will just last week. I bet they’re way too old for that!” So, will this argument hold up in court? Let’s see what our California courts have to say.

All wills and trusts require legal capacity. Capacity means the ability of someone such as a wills and estates law firm to execute an important legal document like a will or trust. As we’ll see, California courts have said that the capacity to create a will is actually quite different from the capacity to create a trust.

Will Capacity

Like for many things, states usually require a person to be at least 18 years old to make a will. This person also needs to generally know what kind of property they have and whether they can plan who gets what when they pass away. (Cornell Law School Legal Information Institute)

For California, take a look at Probate Code section 6100.5. It says that a person generally needs to understand that they are writing a will, know what property they have, and know who will get what.

The language of the law makes it seem as if a person needs to have a very clear mind when writing their will, but California courts have determined that this isn’t true. In the case of Marriage of Greenway (2013) the court said: “The standard for testamentary capacity is exceptionally low…it is well settled, ‘old age, feebleness, forgetfulness, filthy personal habits, personal eccentricities, failure to recognize old friends or relatives, physical disability, absent-mindedness and mental confusion do not furnish grounds for holding that a testator lacked testamentary capacity.’”

So, returning to our question from above, the argument that an elder relative is too old to write their will just isn’t going to win the case. It’s certainly unfortunate that the elder relative can’t recognize some faces and forgets to flush the toilet from time to time, but even so, they still have the legal ability to write their own will.  

Trust Capacity

On the other hand, California courts generally require higher capacity to create a trust because a trust is usually more complicated than a will.

Consider the case of Andersen v. Hunt (2011) in which the court said if a person is creating a trust that is similar to a will, the person only needs the exceptionally low will capacity.

However, if a person is creating a trust that is more complicated than a will, which it usually is, then the person needs the capacity for entering into a contract. Signing contracts are usually more serious events that come with greater consequences and responsibilities, like hiring a contractor to redesign a kitchen or obtaining a mortgage to buy a house. So, if a trust is a more complex legal document like a contract, it makes sense that courts require the settlor, or the person who creates the trust, to have higher capacity.

This kind of capacity, called contractual capacity, is found in Probate Code section 812. It says that a person creating a trust needs to demonstrate that they understand, not just one, but all of the following: the responsibilities that the person takes on after signing the contract, what generally happens after signing the contract, and the pros and cons of signing the contract.

Contest a will today with an Experienced Probate Litigation Lawyer

Challenging a will or trust based on capacity problems is very common in estate litigation cases. Max Alavi, OC Trusts Lawyer, is a highly reputable and experienced estate litigation lawyer who has dealt with many wills and trusts contest cases. If you think a will or trust has legal capacity problems, schedule a consultation with Max Alavi, OC Trusts Lawyer today.


Max Alavi APC, OC Trusts Lawyer, contributed this blog post as an educational resource. The material is meant for informational purposes only and not to provide legal advice because laws and regulations may differ across states, and each case may be unique. If you have any questions about the content of this post, it is recommended that you seek advice from a local Estate and Probate attorney.