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Guardianship and Testamentary Capacity

Posted Monday, June 30, 2014 by John S. Palmer

The findings of incapacity needed to support the appointment of a guardian do not necessarily mean that a person also lacks the ability to make or revoke a will. That’s because of the different standards involved in determining capacity with respect to managing one’s day-to-day affairs versus arranging for the disposition of property after death.

Washington case law defines testamentary capacity to mean having sufficient mind and memory to intelligently understand the nature of the business in which one is engaged, to comprehend generally the nature and extent of the property which constitutes one’s estate and which he or she intends to dispose of, and to recollect the objects of his or her bounty.

On the other hand, a person may be deemed incapacitated for guardianship purposes when he or she “has a significant risk of personal harm based upon a demonstrated inability to adequately provide for nutrition, health, housing, or physical safety” and/or “is at significant risk of financial harm based upon a demonstrated inability to adequately manage property or financial affairs.”

In the 1942 case of In re Estate of Bottger, the Washington Supreme Court said the appointment of a guardian does not always mean that the ward is incapable of making a valid testamentary disposition of his or her property:

[T]he fact that a guardian has been appointed to conserve the estate of one adjudged incompetent to manage it herself does not necessarily tend to establish lack of capacity on the ward’s part to execute a will (whether the adjudication of incompetency precedes or follows the execution of the will), unless the order appointing the guardian is based upon an express finding of some mental defect inconsistent with the possession of the capacity required for the execution of a will…A person may indeed be incapable of managing and conserving a large estate and yet be perfectly able to understand the nature of a will, to comprehend the extent of his property, and to recall the natural objects of his bounty. In short, he may require a guardian to supervise his estate and yet be competent to make a valid will disposing of it upon his death.

The Court of Appeals revisited the issue last month in the case of In re Estate of Alsup and found that subsequent changes to the guardianship statutes do not render the Bottger decision invalid. It noted that RCW 11.88.005 mandates that an individual’s “liberty and autonomy should be restricted through the guardianship process only to the minimum extent necessary to adequately provide for their own health or safety, or to adequately manage their financial affairs” and RCW 11.12.010 grants any person “of sound mind” (i.e., having testamentary capacity) “the unqualified right to devise his or her estate.”

The court also noted that a guardian needs court permission to make lifetime gifts of an incapacitated person’s property, and said the legislature could have likewise required a court order for someone to make a testamentary disposition of his or her assets after the appointment of a guardian “had it ever intended courts to dictate whether incapacitated persons may devise their estates.” And echoing Bottger, the Alsup decision quotes this passage from a 2011 Virginia case:

A less degree of capacity is requisite for the execution of a will than for the execution of contracts and the transaction of ordinary business. One may be capable of making a will yet incapable of disposing of his property by contract or of managing his estate. Mental strength to compete with an antagonist and understanding to protect his own interest are essential in the transaction of ordinary business, while it is sufficient for the making of a will that the testator understands the business in which he is engaged, his property, the natural objects of his bounty, and the disposition he desires to make of his property.

The Alsup decision also states that while the right to dispose of one’s property at death is “not only a valuable right, but is one assured by law,” a court might nonetheless make an express finding in a guardianship proceeding that an incapacitated person “presently lacks the testamentary capacity to make or revoke a will, which would create a presumption of lack of testamentary capacity” in which case the burden would be on the proponent of any subsequent will to demonstrate “that the capacity of the testator had been restored or there was a lucid interval at the time of executing the will.”

There was no such express finding in the order appointing a guardian for Mr. Alsup, and the case was remanded to the trial court to determine whether he had testamentary capacity when he signed his will in 2001, about 4 years after a guardian was first appointed for him.

Parenthetically, the Court of Appeals also reversed a trial court order invalidating Mr. Alsup’s 2002 marriage, because the order appointing guardian did not specifically restrain his right to marry, and RCW 26.09.040 requires a third party wishing to challenge the validity of a marriage to do so while the spouses are alive; the death of either spouse abates any proceeding to declare the marriage invalid. As a result, the surviving spouse, who was not named in the will, stands to inherit at least a portion of the estate under Washington’s omitted spouse statute, even if the will is upheld.

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Law Office of John S. Palmer11911 NE 1st St, Ste. B204,Bellevue, WA 98005-3056