It has been said that "[t]he same clearness of comprehension and ability of expression which is required to enable a man to enter into a contract need not exist to enable him to make a valid will."1 But what about the capacity necessary to execute an intervivos trust? While the law is replete with examples of cases discussing the requisite mental capacity of a testator necessary to execute a will,2 few decisions exist wherein a court is faced with analyzing the requisite mental capacity necessary to execute an intervivos trust. The recent decision of In re Donaldson sheds light on this seldom analyzed area of law.
In Donaldson,3 the Richmond County Surrogate's Court considered the issue of whether the decedent had the mental capacity to effectuate an intervivos transfer of real property (her home) to a trust that she executed shortly before her death at the age of 88 years old. At the time of her death, the decedent lived alone in her home but was assisted by third parties and some of her seven children. One of the decedent's children, Diana Morelli, took it upon herself to have a trust and a deed transfer prepared by an attorney for her mother to execute so that her mother's home could be placed in trust. Interestingly, the attorney draftsman never met with the decedent or spoke with her privately prior to drafting the documents. Rather, the attorney relied upon Morelli and a letter from the decedent's physician in support of the decedent's competency. Two months before she died, the decedent executed the drafted documents.
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