Capacity Required to Create a Revocable Trust

You might recall from my discussion of capacity under my Will tab that I discussed the capacity required to make a will in detail. In order to create a living trust in Missouri, the individual must possess the same testamentary capacity as that required to execute a will. In order to possess the necessary testamentary capacity in Missouri to execute a will, a person must be of sound and disposing mind and memory.

Missouri Approved Jury Instruction (MAI) 15.01 defines the phrase sound and disposing mind and memory. That phrase means that when a person signed the will that he or she was, first, able to understand the ordinary affairs of life, second, able to understand the nature and extent of his or her property, third, able to know the persons who were the natural objects of his or her bounty and, fourth, could intelligently weigh and appreciate the natural obligations to those persons.

The first requirement of MAI 15.01 requires the testator to understand the ordinary affairs of life is an inexact definition and open to many interpretations. It might mean that the person is oriented as to time and space. Some cases have discussed this factor and held that the individual executing the will needed to be able to understand the necessity of providing for the daily needs of life. It has also been interpreted as not being required to understand complicated business transactions. The testator must understand the nature of the transaction of executing a will. This is a basic requirement that the testator know he or she is signing a will. If the testator cannot understand that he or she is executing a will, then the testator lacks the necessary capacity to execute the will.

The second requirement of MAI 15.01 is that the testator must understand the nature and extent of his or her property. The testator needs to understand the nature and extent of his property so that he or she can determine who the beneficiaries of the will are and what each beneficiary should receive. This does not mean that the testator must have a perfect knowledge of the assets and liabilities in his or her estate. A general knowledge of the nature and extent of the property will suffice.

The third requirement of MAI 15.01 is that a testator must understand the natural objects of his bounty. The knowledge may be general in nature but clearly the testator should know the names and number of his or her children. Additionally, it is not unrealistic to expect that the testator know the name of his or her spouse, if any.

The last requirement of MAI 15.01 is that a testator must be able to intelligently weigh and appreciate the natural obligations to the objects of his or her bounty and understand the disposition of the property as set forth in the will. This requirement focuses on the disposition of the testator’s assets. The testator must have the required understanding of who the testator desires to name as beneficiaries of his or her estate plan.

As set forth in MAI 15.01, the testator must have satisfied all four requirements at the time of the execution of the will in order to be of sound and disposing mind and memory.

The grantor of a revocable living trust must satisfy all of the above requirements in order to meet the necessary capacity requirement to create a trust in Missouri.

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