The old adage, “He who waits for something good never waits too long,” does not apply in Estate Planning.

The topic of testamentary capacity is a very sensitive one, and a fine line to cross. Many times an elder adult can be in good physical shape and carry on a very reasonable conversation, until one checks the facts, and finds out that all that he or she was talking about is but a figment of the imagination, and not based in reality at all.

Trust attorneys often employ strategies like getting a Geriatric Evaluation confirming testamentary capacity, or advising a client to see a second attorney and seek a “Certificate of Independent Review” of a contemplated trust amendment. A Certificate of Independent Review is a “second opinion” from another independent trust attorney who meets with the client to confirm that he or she is acting with a full understanding of the contemplated testamentary act.

Since the Trust speaks at death, and the trust creator (a.k.a., the Settlor) cannot come forward to confirm that “that's what they really wanted,” it is critical that capacity is taken very seriously. Steps are taken to ensure that amending the terms of a trust at a later stage in life is not done by a Settlor who has diminished capacity, who is susceptible to undue influence, or who is not capable of resisting outside pressure, or worse – is doing so under duress.

Confirming testamentary capacity will go a long way in assuring the trust beneficiaries that the terms of the trust express the true, unbiased, and unclouded wishes of the Settlor. If capacity is even slightly at all an issue, it is unwise to proceed unless such assurances are sought – by way of a Geriatric Evaluation (before amending a Trust or a Will) and a Certificate of Independent Review (after such amendment), which will clarify that the Settlor was of sound mind, under no duress, and acted with full and unclouded testamentary capacity.

Contact The Law Offices of Maria N. Jonsson, Trusts & Estates in Marina del Rey, on 475 Washington Boulevard. Contact us to learn more.

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