Generally speaking, there are different competency standards for executing Wills and Trusts. For a Will, one needs to have "testamentary capacity" while "contractual capacity" is needed for a Trust. In Hawaii, the case that details the testamentary capacity requirements for a Will is In the Matter of the Estate of Carmen Corrine Herbert. If you have testamentary capacity, the Hawaii Supreme Court stated that you must have the ability to:
On the other hand, to validly execute a Trust in Hawaii, a person must have contractual capacity. Contractual capacity is a higher standard and it basically means having the ability to 1) transact ordinary business and 2) understand and protect your own interests. In other words, the person executing the Trust document must have the ability to understand the rights and duties created by a Trust and appreciate any ramifications (on them and others) that may occur from their decision.
The reason for the higher standard is that a Trust creates legal relationships and, consequently, present duties and responsibilities while a Will is concerned mainly with transferring assets to others at death. Therefore, a person executing a Will need not understand how his or her decision(s) will affect others after they have died in order for the person to have the requisite testamentary capacity.
Being aware of and understanding the differing capacity standards for Wills and Trusts is important because if there is a concern that your estate plan may be challenged in the future, steps can be taken to minimize the chances that your plan would be overturned based on a lack of capacity argument.
Samuel K.L. Suen is an attorney based in Honolulu, Hawaii specializing in estate planning, probate, conservatorship and guardianship matters.
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