The Due Process in Competence Determinations Act

In the Due Process in Competence Determinations Act, the legislature states that a person who has a mental or physical disorder may still be capable of performing a variety of actions with legal consequences. Accordingly, the Act’s purpose is to ensure that a judicial determination that a person should be deemed to lack the legal capacity to perform a specific act be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of the person’s mental or physical disorder.

The Act applies to determinations that a person is of unsound mind or lacks the capacity to make a decision or do a certain act, expressly including the incapacity to contract, make a conveyance, marry, make medical decisions, vote, or execute wills or trusts.

This legislation had its origins in efforts to set limits on competence determinations in conservatorships and other protective proceedings. There is, however, nothing in the Act that prevents its application in will and trust contests and, as noted above, it expressly applies to the actions underlying such proceedings.

Burden of Proof as to competency

A competent testator or settlor may dispose of his or her property as he or she wishes, without regard to the desires of prospective beneficiaries or the views of anyone else, as long as the document’s terms are not prohibited by law or contrary to public policy.

The testator is presumed sane and competent and the contestant has the burden of proving by a preponderance of the evidence that the testator lacked testamentary capacity at the time the will was signed.

The same general presumption of competence exists with respect to the execution of trusts.If a testator had a mental disorder but had lucid periods, there is a presumption that the will was executed during a period of lucidity.

Once it is shown that testamentary incompetency exists and that it is caused by a mental disorder of a general and continuous nature, the inference is reasonable (and might even be a presumption) that the incompetency continued to exist at the time the instrument was signed.