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Testamentary Capacity: Wills & Trusts

The capacity required to create, amend, revoke or add property to a revocable trust is the same as that required to make a will. Section 456.6-601, RSMo. To have testamentary capacity, the testator/settlor must — at the time the document is executed — be able to: (1) understand the ordinary affairs of his/her life; (2) understand the nature and extent of her property; (3) know the persons who were the natural objects of the bounty; and (4) intelligently weigh and appreciate his/her obligations to those persons and know that he/she is giving property to the persons mentioned in the document. In re Gene Wild Revocable Trust, 299 S.W.3d 767, 777-78 (Mo. Ct. App. 2009).

While capacity needs to only exist at the time of execution, evidence of mental unsoundness or difficulties either before or after the document was created is often used at trial. Armbruster v. Sutton, 244 S.W.2d 65, 72 (Mo. 1951). As such, capacity (or lack thereof) may be shown by reasonable inference and it isn’t required that proof of incapacity be made by eyewitnesses (though eyewitnesses are always more helpful). Thompson v. Curators of Univ. of Mo., 488 S.W.2d 617, 620 (Mo. 1973). In addition to lay testimony, medical opinion testimony is often introduced to establish mental unsoundness of a person at the time a challenged document is executed. Dorsey v. Dorsey, 156 S.W.3d 442, 446 (Mo. Ct. App. 2005). This determination of capacity is very much in the Court’s discretion. For example, Courts have found that a person was unable to understand the nature of her property when it was undisputed another person had to pay bills and manage her finances. Disbrow v. Boehmer, 711 S.W.2d 917, 924-25 (Mo. Ct. App. 1986).

Procedurally, the proper method for challenging a will is typically when the probate estate is opened. The will is admitted for probate and an interested party may object to the will’s validity on the grounds of capacity. For trusts, if everything is properly funded, the trust is not admitted to probate and is often administered privately. Therefore, an interest party would have to file an action in the probate court and bring the matter to the court’s attention.

Contact us with questions relating to wills, trusts, capacity, probate and estate administration.