CERTIFIED FOR PARTIAL PUBLICATION *
Plaintiffs and respondents Stephen Andersen (Stephen) and Kathleen Brandt (Kathleen) are the children of decedent Wayne Andersen (Wayne), who died April 28, 2006.
In 1992, Wayne and his wife established a family trust that named Stephen and Kathleen the sole beneficiaries after their parents' deaths. Wayne's wife died in 1993. In 2003, after suffering a stroke, Wayne amended his trust to leave a 60 percent portion of his estate to Pauline, with the remainder going to Stephen, Kathleen, and John. He made subsequent amendments later in 2003 and in 2004, but retained the provision leaving 60 percent of his estate to Pauline.
After Wayne's death in 2006, Stephen and Kathleen brought the present action to, among other things, invalidate the 2003 and 2004 trust amendments and recover funds placed in accounts held jointly by Wayne and Pauline. The probate court found that Wayne lacked capacity to execute the trust amendments, transfer funds from the trust to joint tenancy accounts, and change the beneficiary of his life insurance policy, and that Pauline exerted undue influence with respect to the amendments and transfers.
In the published part of the opinion, we conclude the probate court erred when it evaluated Wayne's capacity to execute the trust amendments by the general standard of capacity set out in Probate Code sections 810 to 812, instead of the standard of testamentary capacity set out in Probate Code section 6100.5.
STATEMENT OF FACTS AND OF THE CASE *
III. The Trial Court Erred in Evaluating Wayne's Capacity to Execute the Trust Amendments by Standards of Contractual Capacity, Not Testamentary Capacity
The probate court held that Wayne's capacity to execute the trust amendments should be evaluated pursuant to sections 810 to 812 (contractual capacity), rather than section 6100.5 (testamentary capacity). It also found that Wayne lacked contractual capacity as defined by sections 810 to 812.
Pauline contends that the trial court erred in evaluating Wayne's capacity to execute the trust amendments by the standard of contractual capacity, rather than testamentary capacity. She also contends substantial evidence does not support the conclusion that Wayne lacked testamentary capacity to execute the trust amendments. For the following reasons, we agree.
A. Testamentary Capacity
Section 6100.5 sets out the standard for testamentary capacity. It provides that a person is not mentally competent to make a will if at the time of making the will, either of the following is true:
"(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
"(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the
B. Capacity Generally
Sections 810 to 813 set out the standard for capacity to make various kinds of decisions, transact business, and enter contracts. Section 810 provides:
"(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.
"(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.
"(c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person's mental functions rather than on a diagnosis of a person's mental or physical disorder."
Section 811 sets out the findings necessary to support a conclusion of lack of capacity, as follows:
"(a) A determination that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, including, but not limited to, the incapacity to contract, to make a conveyance, to marry, to make medical decisions, to execute wills, or to execute trusts, shall be supported by evidence of a deficit in at least one of the following mental functions, subject to subdivision (b), and evidence of a correlation between the deficit or deficits and the decision or acts in question:
"(1) Alertness and attention, including, but not limited to, the following: [¶] (A) Level of arousal or consciousness. [¶] (B) Orientation to time, place, person, and situation. [¶] (C) Ability to attend and concentrate.
"(2) Information processing, including, but not limited to, the following: [¶] (A) Short- and long-term memory, including immediate recall. [¶] (B) Ability to understand or communicate with others, either verbally or otherwise. [¶] (C) Recognition of familiar objects and familiar persons. [¶] (D) Ability to understand and appreciate quantities. [¶] (E) Ability to reason using abstract concepts. [¶] (F) Ability to plan, organize, and carry out actions in one's own rational self-interest. [¶] (G) Ability to reason logically.
"(4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances.
"(b) A deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.
"(c) In determining whether a person suffers from a deficit in mental function so substantial that the person lacks the capacity to do a certain act, the court may take into consideration the frequency, severity, and duration of periods of impairment. . . ." (Italics added.)
Section 812 provides: "Except where otherwise provided by law, including, but not limited to, Section 813 and the statutory and decisional law of testamentary capacity, a person lacks the capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following: [¶] (a) The rights, duties, and responsibilities created by, or affected by the decision. [¶] (b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision. [¶] (c) The significant risks, benefits, and reasonable alternatives involved in the decision."
C. Wayne's Capacity to Execute the Disputed Trust Amendments Should Have Been Evaluated by the Standard of Testamentary Capacity (Section 6100.5)
As the cases cited by the parties make clear, California courts have not applied consistent standards in evaluating capacity to make or amend a trust. In Goodman v. Zimmerman (1994) 25 Cal.App.4th 1667, 1673-1679 [32 Cal.Rptr.2d 419], cited by Pauline, the court applied section 6100.5's standard for testamentary capacity to evaluate a decedent's capacity to execute a new will and trust amendment. In contrast, in Walton v. Bank of California (1963) 218 Cal.App.2d 527, 541 [32 Cal.Rptr. 856], cited by Stephen and
As Stephen and Kathleen correctly note, section 6100.5 defines mental competency to make a "will," not a testamentary transfer more generally. Thus, they appear to be correct that Wayne's capacity must be evaluated under sections 810 to 812, not section 6100.5.
In the present case, while the original trust document is complex, the amendments are not.
In view of the amendments' simplicity and testamentary nature, we conclude that they are indistinguishable from a will or codicil and, thus, Wayne's capacity to execute the amendments should have been evaluated pursuant to the standard of testamentary capacity articulated in section 6100.5. The trial court erred in evaluating Wayne's capacity under a different, higher standard of mental functioning.
D. There Is No Substantial Evidence That Wayne Lacked Testamentary Capacity When He Executed the Trust Amendments
The part of the judgment invalidating the trust amendments is reversed, and the probate court is directed to enter a new and different judgment affirming the validity of the trust amendments. In all other respects, the judgment is affirmed. The parties are to bear their own costs on appeal.
Epstein, P.J., and Manella, J., concurred.