pjc-family-2024-lib

E XPRESS T RUSTS

PJC 235.1

PJC 235.1

Mental Capacity to Create Inter Vivos Trust

QUESTION ______ Did SETTLOR lack sufficient mental capacity to create a trust when he signed the document dated DATE ? A person lacks sufficient mental capacity to create a trust if he lacks suffi cient mind and memory to understand the nature and consequences of his acts and the business he is transacting. Answer “Yes” or “No.” Answer: _______________ COMMENT Source. The mental capacity required to create a trust is the same as that required to make a contract. In re Estate of Robinson , 140 S.W.3d 782 (Tex. App.—Corpus Christi–Edinburg 2004, pet. denied) (discussing difference between testamentary capacity and capacity to make a trust). To establish mental capacity to execute a deed or contract, the grantor must have had sufficient mind and memory to understand the nature and effect of his act at the time of execution. See Kinsel v. Lindsey , 526 S.W.3d 411, 419 (Tex. 2017) (discussing mental capacity to execute real estate sales contract, deed, and amendments to trust); see also Mandell & Wright v. Thomas , 441 S.W.2d 841, 845 (Tex. 1969) (discussing mental capacity to execute contract); Decker v. Decker , 192 S.W.3d 648, 652 (Tex. App.—Fort Worth 2006, no pet.) (discussing men tal capacity to execute deed); Bradshaw v. Naumann , 528 S.W.2d 869, 873 (Tex. App.—Austin 1975, writ dism’d) (discussing mental capacity to execute deed). See also Tex. Prop. Code § 112.007. In dicta, some courts have suggested that less mental capacity is required to enable a testator to make a will than for the same person to make a contract. See, e.g., Hamill v. Brashear , 513 S.W.2d 602, 607 (Tex. App.— Amarillo 1974, writ ref’d n.r.e.). However, the Committee has found no case holding that this distinction should be included as part of the definition. When to use. The foregoing question and instruction are used only for an inter vivos trust, not for a testamentary trust in a will. For the question on mental capacity required to execute a will containing a testamentary trust, see PJC 230.2 (testamentary capacity to execute will). Burden of proof. A person is generally presumed to have sufficient mental capacity to execute a contract or an inter vivos trust; therefore the burden of proof is on the contestant. Walker v. Eason , 643 S.W.2d 390, 391 (Tex. 1982); Bradshaw , 528 S.W.2d at 873. If a trust is created by a person who has been declared incapacitated,

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