By Kent Berk on October 1st, 2024 in PROBATE LITIGATION
Let’s face it: not every legal issue is created equal. Whether it’s deciding who gets your vintage wine collection or whether you can still marry your high school sweetheart, capacity matters. And no, we’re not talking about your capacity to binge-watch an entire season of your favorite show in one sitting. We’re talking legal capacity – the kind that can make or break your will, your trust or your marriage.
In our probate litigation practice, we see disputes over capacity in numerous situations. Here’s a brief breakdown of many of the different types of capacity in Arizona.
Capacity to Create a Will or Trust
The mental capacity required to create a will (known as testamentary capacity) is the same as that required to create a trust. This standard requires that a person have the ability to know and understand the nature and extent of their property, the natural objects of their bounty (i.e., their family members or beneficiaries), and the legal effect of creating the will or trust.
A person must be able understand that, through a will or trust, they are deciding how their property will be distributed after death. This standard does not require perfect mental clarity at all times—fluctuations in mental condition do not automatically invalidate a will or trust. Capacity is determined at the precise moment of signing.
Capacity to Execute a Deed
In general, for someone to validly convey property, they must understand to a reasonable degree the nature of the transaction and its consequences. This means the individual needs to comprehend that they are relinquishing ownership of their property and transferring it to someone else.
Capacity to Execute a Power of Attorney
To grant a power of attorney, whether for financial or healthcare purposes, the principal must have sufficient mental capacity to understand in a reasonable manner the nature and effect of the grant. This means that the individual must grasp the nature of the powers they are delegating and the potential impact of granting such authority.
Challenges to a power of attorney often arise when there is concern that the principal did not understand the document or that they were pressured into signing it. As with other legal documents, the principal’s capacity must be evaluated at the time of signing.
However, unlike in most cases where the challenger has the burden of proof, that is not the case with respect to durable powers of attorney. In a civil proceeding involving a durable power of attorney, the agent has the burden of proving the principal had capacity to execute the power. See A.R.S. § 14-5506(B).
Capacity to Marry
The capacity to marry is basically the same standard as the capacity to contract, since Arizona considers marriages as civil contracts. So, it requires that both parties understand the nature of marriage and the responsibilities it entails. This includes understanding the legal and emotional consequences of marriage, such as sharing financial and personal responsibilities. A person who lacks the mental capacity to understand these commitments cannot enter into a valid marriage.
Mental incompetence, such as cognitive disorders or severe mental illness, can be grounds for annulling a marriage if it is shown that one party was unable to understand the significance of the marital relationship. Marriage is a legal contract, and, like any contract, the person must understand the nature and consequences of the act.
Capacity to Select a Guardian or Conservator
Even if a person is incapacitated and requires the appointment of a guardian or conservator, they may still have the capacity to express a reasonable choice as to who should serve in that role. Arizona courts give weight to an individual’s preference when selecting a guardian, provided the person has sufficient capacity to make a reasonable choice.
The court will take into account whether the proposed guardian or conservator is acting in the best interest of the incapacitated individual and will respect the individual’s preference. This situation typically arises in cases where someone has been declared incapacitated but is still able to express a rational decision about who should manage their personal and financial affairs.
Capacity to Contract
To enter into a legally binding contract, a person must have the mental capacity to understand the nature of the agreement and the obligations it imposes. This standard requires that the individual be able to comprehend the terms of the contract, the consequences of entering into it, and the risks and benefits associated with the agreement.
Capacity: The Fine Line Between Clarity and Chaos
Whether you’re helping clients figure out who gets the family dog or making sure someone knows what they’re getting into when they say, “I do,” capacity isn’t something to take lightly. Just remember: the next time someone asks if they’re of sound mind to draft their will, marry their soulmate, or pick their guardian, the answer is, “It depends.” Now go forth, assess capacity, and help your clients avoid any “oops, I wasn’t quite with it” moments!
About Kent Berk
Kent Berk, the Founder and Managing Partner of Berk Law Group, P.C. in Scottsdale, has been an active participant in the Arizona legal community for over 30 years. He founded the firm in 1996 and specializes in probate, trust, estate and elder law disputes. Kent received the 2023 Robert R. Mills Member of the Year award from the Maricopa County Bar Association.
An author of several articles and a frequent seminar speaker, Kent has served on various boards, including as the chair of the Estate Planning Probate and Trust Section of the MCBA. He is also actively involved in the Probate Lawyers Assistance Project. For more information about Kent and his law firm, visit www.BerkLawGroup.com.
Reprinted from the Maricopa Lawyer, October 2024.