One of the most fruitful and confused areas of estate and trust litigation involves the mental capacity of the grantor of a trust. Not too long ago, the Michigan legislature made it clear that the mental capacity necessary to create a trust is the same as the mental capacity necessary to make a will. But a significant problem remains. How do you know?
Grandma is 85. She decides to change her trust and disinherit grandchildren XYZ in favor of grandchildren ABC. Grandma lives in an assisted living facility and granddaughter B was appointed Conservator and helps her pay bills because Grandma can be a bit forgetful. Because of the conservatorship, Grandma is deemed "disabled" under the language of the Trust and Mr. Jones has taken over as her successor trustee. Grandma is alert, knows her family, where she lives etc.