Article: When Twilight Becomes Darkness: Capacity Issues in Connection with Revocable Trusts

Sergio Pareja (ACTEC Fellow, The University of New Mexico School of Law) recently published, When Twilight Becomes Darkness: Capacity Issues in Connection with Revocable Trusts, ACTEC Law Journal, VOLUME 49, Number 1, Fall 2023 (pub 1/24). Provided below is an Introduction:

Lately, I spend a lot of time with my mother-in-law, who has Alzheimer’s Disease and lives in a memory care facility near our home. She is what we call high functioning. Although she has virtually no short-term memory, we have very pleasant conversations, and she knows who her children are. Her memory of events from the distant past is quite good, although she often gets very confused about the present.

My mother-in-law’s illness has proved to be quite the learning experience for my wife and me, and we have see the pitfalls and learned some tricks to spending quality time with a person with the disease. Lately, I find myself if my mother-in-law would have the mental capacity to execute a new will and revocable trust, should she ask to. For a will, the general standard, subject to some variations in different states, is that the testator must understand the nature and extent of her property, the natural objects of her bounty, and the contents of her estate plan. This is generally viewed as a lighter standard than the capacity necessary to make a deed or contract. Unlike testamentary capacity, contractual capacity only exists if a person has the ability to understand the consequences of the transaction…