In keeping with the will substitute theory, “capacity” of a person “to create, amend, revoke, or add property to a revocable trust, or to direct the actions of a trustee of a revocable trust, is the same as that required to make a will.” MTC § 14.5-601(a); UTC § 601.
This definition, or rather non-definition, of capacity defaults to the Maryland common law. Md. E&T § 4-101 (“Persons qualified to make a will”) states simply: Any person may make a will if he is 18 years of age or older, and legally competent to make a will.”[1]
The Maryland common law sets a low bar for testamentary capacity: “[I]t has never been intended to require under these formulas any extraordinary mental capacity for making a will.” Seller v. Qualls, 206 Md. 58, 65-6, 110 A.2d 73, 77 (1954). Maryland applies a traditional common law definition of testamentary capacity:
“Whether a testator had sufficient mental capacity is determined by a consideration of his externals acts and appearances. It must appear that at the time of making the will he had a full understanding of the nature of the business in which he was engaged; a recollection of the property of which he intended to dispose and the persons he meant to give it, and the relative claims of the different persons who were or should have been the objects of his bounty.”[2]
Sellers is often briefed by those defending a will because of the nature of the “external acts and appearances” of the testatrix in that case. The Sellers Court found that the testatrix, although eccentric, did not lack testamentary capacity despite her “disgusting eating habits” that involved her “eating of salvaged food (which) seems to have been a manifestation of an odd and extreme form of miserliness; but miserliness is not necessarily the hallmark of insanity, and is more likely to indicate the reverse.” Sellers at 64-5/76.
Like many caveat cases, the will in Sellers was attacked based on capacity and undue influence. Often the line is difficult to draw with precision. In a pre-MTA case, the Court of Appeals embraced the UTC approach to treat a revocable trust “as the functional equivalent of a will.” In Upman v. Clarke, 359 Md. 32, 753 A.2d 4 (2000), the court applied the presumption created by the existence of a “confidential relationship” that applies to wills, not the presumption that is triggered for a lifetime gift. In Upman, the trustees were the remainder beneficiaries at the settlor’s death. The court saw the trust amendment that appointed the remaindermen as trustees “an inter vivos gift” by the immediate transfer of title to those trustees. Nevertheless, the Upman court held that because those trustees had no right to beneficial enjoyment until the settlor’s death, the revocable trust was the functional equivalent of a will as to its transfer at death of equitable title to the trustees.
[1] By contrast, California provides in its Probate Code a fine-tuned procedure to determine whether a person lacks testamentary capacity. Under its statute, there must be a deficit in at least one enumerated area of mental function and a showing that such deficit is so substantial that the person’s ability to understand and appreciate the consequences of signing his or her will. (California Probate Code § 811 (“Deficits in mental function.”) The California Probate Code applies this procedure to determining testamentary capacity which is similar to, but not exactly the same as, the common law standard. Calif. Probate Code § 6100.5 (“Persons not mentally competent to make a will; specified circumstances.”) and Calif. Probate Code § 6100 (“Persons who may make a will”). [2]Sellers at 66/77, quoting Sykes, “Contest of Wills in Maryland,” Sec. 61 (___). See Chapter ___ for a more complete discussion of capacity.
