Tuesday, September 15, 2009

Incapacitated vs. Testamentary Capacity

The Arizona Statutes have a definition for an incapacitated person. The Statute reads as follows:
Any person who is impaired by reason of mental illness, mental deficiency, mental disorder, physical illness or disability, chronic use of drugs, chronic intoxication or other cause, except minority, to the extent that he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning his person. A.R.S. 14-5101
Many people assume that an incapacitated person cannot make a will or trust, but that is not the case in Arizona. Disposing of a person's estate requires only testamentary capacity. There is no statutory definition for testamentary capacity, we have to look to the case law for a definition. The Arizona courts have set forth the standard and have ruled that a testator has sufficient testamentary capacity if he (or she) is merely capable of: (1) understanding that the instrument disposes of his property at death; (2) knowing the general nature and character of his property; and (3) knowing the natural objects of his bounty (i.e. the family members that logically would inherit his property) and understands his or her relationship to them. See In re O’Connor’s Estate, 74 Ariz. 248, 246 P.2d 1063 (1952).

The case of In re the Estate of Green, 40 Ariz. 274, 11 P.2d 947 (1932) held that testamentary capacity could be rebutted by a "
Mental derangement sufficient to invalidate a will must be insanity in one of two forms: (1) [i]nsanity of such broad character as to establish mental incompetency generally; or (2) some specific narrower form of insanity under which the testator is the victim of some hallucination or delusion. Even in the latter class of cases, it is not sufficient merely to establish that a testator was the victim so some hallucination or delusion. The evidence must establish that the will itself was the creature or product of such hallucination or delusion . . ." It is apparent that the advances in medicine and the predominance of Alzheimer's disease may seriously affect this definition at some time in the future.