Can an Old Dog Make New Gifts?: An Analysis of the Anderson v. Hunt Case and Determining the Standard for Mental Capacity to Execute an After Death Transfer by Trust

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In the recent case of Andersen v. Hunt (California Court of Appeal, Second District, B221077, June 14, 2011), the California Court of Appeal articulated the applicable standard by which to evaluate an individual’s capacity to make an after-death transfer by trust. The issue in this case was whether the standard used to determine whether an individual has the capacity to amend a Will or Trust should be the “contractual” standard or the “testamentary” standard. The Court concluded that more complicated decisions and transactions would require greater mental function while less complicated decisions and transactions would appear to require less mental function. Thus the standard might very well deviate with regard to such different acts as making a contract, making a will and/or making or amending a trust document.

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