Let’s pretend you have a crazy uncle that only wears pajamas even when going to places outside his home. He often goes to his neighbors’ houses and offers to buy all of their furniture even though the furniture is not for sale. And he sends strange gifts to family members through the mail, which usually consist of raw fish and raw meat. Does your uncle lack capacity to create a Trust or Will?
Maybe, maybe not, we don’t really know the answer to that questions based on the facts described in the paragraph above because under California Probate Code section 811 you can only prove lack of capacity by first establishing a mental defect. While all the actions described certainly sound crazy, they do not establish the existence of a mental defect. Your uncle may just be eccentric or “crazy” in the common sense of the word, but not in the medical sense.
A mental defect is typically a cognitive impairment created by conditions such as dementia or Alzheimer’s disease. A person with dementia may not do any of the things that crazy uncle above does, and yet a dementia patient could potentially lack capacity to create a Trust or Will.
Crazy uncle on the other hand may or may not have legal capacity, it all depends on whether he has a mental defect. He certainly has a gifting defect (sending raw fish in the mail), but until a mental defect is established, he is free to create or change his Trust or Will all he wants.
And that’s the difference between lack of capacity and just being eccentric.