Compos Mentis or Non

31 Oct, 2018//Posted by : admin//Category : Uncategorized

In Latin, the phrase “non compos mentis” describes one who “does not have mastery of one’s mind”. It is a somewhat archaic term, as most Latin phrases are, but still serves the purpose of defining someone who lacks the capacity to execute a testamentary document, whether it be expressed through a will or a trust.

In determining such capacity, there is a tendency to interchange the concept of testamentary capacity with incompetence. A person may be incompetent in one or more functions, or even be under a legal guardianship, but still have capacity to execute their Will. In California and most jurisdictions, testamentary capacity is presumed, meaning that someone who contests a will or trust has the burden to prove that capacity was lacking.

It is common for people displeased with a testamentary disposition to refer to the Decedent as lacking in capacity because they are old, forgetful, cranky or reclusive. Many times the contestant will point to a diagnosis of Alzheimer’s or senile dementia in the medical record as conclusive proof that the Decedent lacked capacity. Any such diagnosis, and others, are not nearly sufficient to overcome the presumption. Stated simply, all that is legally required for someone to have testamentary capacity is that they know and understand the nature of their testamentary act, and who it affects.

Under ss. 21101 and 21102 of the California Probate Code, the intentions of the Testator (or Trustor) are paramount. The courts will do its best to determine what that intention was, under the circumstances, and do its best to enforce the presumption of capacity and the terms of the will or trust.

As our population stretches the actuarial tables upward, there has been a corresponding surge in instances of what is commonly known as “elder abuse”. In a testamentary context, some wills and trusts are contested as the product of such abuse of older people, usually through allegations of fraud or “undue influence”. It is quickly learned by aspiring probate litigators that such allegations are easily made, but not so easy to prove. Again, just because an older person is feeble, fragile, forgetful or frazzed, it does not follow that they are being led down the garden path to an estate plan that is not of their desire or intent. Proving undue influence in formation of an estate plan requires proof of susceptibility to such influence by nature of various physical and mental conditions: close confidential relationships; dependency; physical and mental conditions that lend vulnerability; and, a testamentary disposition that is unnatural and profitable to the accused perpetrator. Again, facts that are easy to allege, but hard to prove.

At all times, care should be taken by a lawyer to be aware that the client is in a condition or circumstances that make he or she susceptible to conniving caregivers or even relatives, and there are simple tests and questions that can be used in making those determinations. However, at all times, the estate planners goal should be as required by law: That the Testator’s/Trustor’s intentions are followed.