Capacity and Undue Influence

Timothy Mahi’ai White

Timothy Mahi’ai White

Janet Li

Janet Li

Some of the more factually intensive challenges to estate and trust instruments are claims that the decedent lacked the capacity to execute the instrument, was unduly influenced to do so, or both. The Courts of Appeal in Andersen v. Hunt (2011) 196 Cal.App.4th 722 and Lintz v. Lintz (2014) 222 Cal.App.4th 1346 offered helpful discussions about the standards that apply, depending upon the particular instrument in question, to capacity determinations.

In turn, the Legislature, through enactment of Probate Code section 86 (effective January 1, 2014), made clear that undue influence has the same meaning in the probate context as that set forth in Welfare and Institutions Code section 15610.70.
In the article that follows, Janet Li, the research attorney for the Probate Division of the Contra Costa Superior Court, and Timothy Mahi’ai White, a judicial extern with the Probate Division, discuss some evidentiary issues that arise concerning capacity claims.


The two concepts of lack of capacity and undue influence are distinct. They may, however, become interrelated in that a decedent who lacks capacity may also be subject to undue influence.[1] We will discuss some of the sub issues as they relate to matters of proof.

The Use of Lay Witness Testimony to Determine Capacity

When a claim is made that a decedent lacked capacity to execute a particular instrument, resort may be made to expert witness testimony. Often in such instances, the experts will disagree on the issue of the decedent’s capacity. The mere diagnosis of a mental or physical disorder is not sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.[2]

Thus, testimony may also be sought from lay witnesses on the issue of whether the decedent lacked the requisite capacity to execute the instrument in question.

Expert and lay witness testimony differ by the types of information that may form the basis for a particular opinion. Where a witness testifies as an expert, his or her opinion testimony is limited to subject matter that is sufficiently beyond the common experience of lay persons:

“If a witness is testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is:

  • (a) Related to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact; and
  • (b) Based on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.”[3]

The challenge to capacity to draft an instrument, however, may depend on facts that may not have been observed or known by an expert. Thus, both expert and lay witnesses may express opinions on the issue of a decedent’s competency.[4]

In the latter instance, “If a witness is not testifying as an expert, his testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is:

  • (a) Rationally based on the perception of the witness; and
  • (b) Helpful to a clear understanding of his testimony.”[5]

The limited exception in Evidence Code section 800 allows a percipient witness to provide opinions helpful to a clear understanding of his or her testimony. Witnesses may relate observations regarding the manner or conduct of a person at a given time, without first being qualified as experts or intimate acquaintances.[6]

Such witnesses may testify about the alertness and conduct of a person at a given time and during a particular transaction.[7]

A lay witness who is accustomed to discussing with an individual the latter’s business affairs may testify to characteristics of the individual which may be readily observed by an acquaintance who frequently comes in contact with the individual, without first having been qualified as an intimate acquaintance under former Code of Civil Procedure section 1870, subdivision 10.[8]

In that case, a manager of a bank where the decedent kept her accounts for many years was permitted to testify about the characteristics and traits of the decedent as being a woman “of very alert mind and positive in her manner.”[9]

The Court of Appeal reflected that these characteristics and traits could be observed by the employee where he saw the decedent “at least once or twice a month … for five years before her death, and that she was accustomed to talk[ing] with him about her business affairs and property interests.”[10]

While both expert and lay witnesses may give their opinions on competency, it is not the opinions which are of importance, but the reasons given in support of such opinions.[11]

In Estate of Wright (1936) 7 Cal.2d 348, 351, the decedent met Grace Thomas, “a notary public and realtor with whom he had transacted business and had known for many years … and asked her what her charge would be for drafting his will.”[12]

He came to her office about three weeks later, “bringing memoranda sheets upon which he had written the names of persons whom he wished to enjoy his property and the specific shares … She prepared the will accordingly.”[13]

After the decedent’s death, his daughter contested his will. Mrs. Thomas and the two subscribing witnesses then testified that they were of the opinion that the decedent was of unsound mind when he executed his will.

When pressed for the basis for her opinion, Mrs. Thomas stated that it was the “funniest will she had ever seen” in that it gave $1 each “to a number of different persons,” that she had thought the decedent strange for some time, and that “he did not have in mind the legal description of the property but that she had it listed for sale and rent.”[14]

The contestant next called James Thomas, a witness to the will. The record did not indicate what relation he bore, if any, to Mrs. Thomas, or who asked him to be a witness.[15] Mr. Thomas “stated that he ‘believed’ the [decedent] was not of sound mind; that in his opinion, [the decedent] had not been of sound mind for some years prior to the execution of the will.”

The Supreme Court observed that Mr. Thomas seemed unable to give a single reason supporting his opinion.[16] “G.W. Madden, the other subscribing witness, when pressed for the reason of his opinion that the [decedent] ‘was not of sound mind’ at the time he signed the will, was also unable to say more than that he considered [the decedent] of unsound mind for some time prior to the making of the will.”[17]

The Supreme Court observed that, as to testimony of those “who participated in the creation of the will and who by their solemn acts gave the stamp of approval and verity to its due execution, and afterwards attempted to repudiate all they had done,” that testimony would be “subject to the scrutiny and suspicion which courts rightfully exercise” in considering such testimony.[18]

While other witnesses also testified, the Court found that, to a great extent, the opinions of those who testified that the decedent was not of sound mind rested upon testimony of the most trivial character and did not establish testamentary incapacity at the time he executed his will.[19]

The Court stated that “testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral or mental irregularities, or departures from the normal unless they directly bear upon and have influenced the testamentary act.”[20] The Court further found that “the burden was upon the contestant throughout the case” and that, “taking all the evidence adduced by contestant as true, it falls far below the requirements of the law as constituting satisfactory rebuttal of the inference of testamentary capacity.”[21]

Janet Li is the research attorney for the Probate Division of the Contra Costa Superior Court. University of California, Hastings College of the Law, J.D.; University of California at Berkeley, B.A.

Timothy Mahi’ai White is a judicial extern with the Probate Division. Golden Gate University School of Law, J.D. expected; University of Hawaii, B.A.

[1] Estate of Larendon (1963) 216 Cal.App.2d 14, 16.
[2] Prob. Code, § 811, subd.(d). This article focuses on the use of lay witnesses and does not attempt to distinguish the standards for legal capacity for different instruments.
[3] Evid. Code, § 801.
[4] Estate of Buthmann (1942) 55 Cal.App.2d 585, 591.
[5] Evid. Code, § 800.
[6] Pfingst v. Goetting (1950) 96 Cal.App.2d 293, 306. Evidence Code section 870 provides: “A witness may state his opinion as to the sanity of a person when:
(a) The witness is an intimate acquaintance of the person whose sanity is in question;
(b) The witness was a subscribing witness to a writing, the validity of which is in dispute, signed by the person whose sanity is in question and the opinion relates to the sanity of such person at the time the writing was signed; or
(c) The witness is qualified under Section 800 or 801 to testify in the form of an opinion.”
[7] Id. at 304.
[8] Jorgensen v. Dahlstrom (1942) 53 Cal.App.2d 322, 337.
[9] Jorgensen v. Dahlstrom, supra, 53 Cal.App.2d at 337.
[10] Ibid.
[11] Estate of Buthmann, supra, 55 Cal.App.2d at 591.
[12] Id. at 351.
[13] Ibid.
[14] Id. at 351-352.
[15] Id. at 352.
[16] Ibid.
[17] Ibid.
[18] Id. at 350.
[19] Id. at 357. That testimony was rather fascinating. Examples include: Cloyd Angell, decedent’s grandson, thought decedent was of unsound mind because he had seen him fishing on the wharf at Venice and he did not tell his friends and acquaintances on the pier that Cloyd was his grandson; neither did Cloyd tell his friends that decedent was his grandfather. (Id. at 353.) Cloyd further testified that he had often seen decedent drunk on the pier. (Ibid.) He further testified that, some eight or 10 years before decedent’s death, decedent seemed fond of him and he used to ride with decedent on the garbage wagon, but decedent’s attitude changed in later years, for no reason of which he was aware, and he did not have much to do with him. (Id. at 354.)
[20] Id. at 356.
[21] Id. at 356. No evidence existed that decedent suffered from settled insanity, hallucinations, or delusions. (Id. at 356.) No medical testimony as to the extent or effect of any injury decedent had received was introduced. (Ibid.) No proof was offered tending to rebut decedent’s ability to transact or conduct his business or to care for himself except in a few cases of illness brought about by natural causes or by accident. (Id. at 356-357.) No evidence was offered that decedent did not appreciate his relations and obligations to others, or that he was not mindful of the property which he possessed. (Id. at 357.)

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