Also known as: volitional capacities · volition
Written by attorneys — see sources below.
The mental capacity to direct bodily movements through conscious will. An outward manifestation of the will is required before a movement counts as an act that can support liability or affect the duration of property interests.
Derek suffers an epileptic seizure backstage and his arm thrashes outward, striking Maya. The movement occurs without any direction from Derek's conscious mind. Because Derek lacks volitional capacity, the contact does not qualify as his act and cannot support battery liability.
Vincent Valdez holds an unrestricted power to revoke a remainder interest at any time for his own benefit. The period during which this power remains exercisable is excluded when measuring the perpetuities period because the interest is subject to his uncontrolled volition.
A testator's will contains a limitation that will vest only after a period measured by the uncontrolled power of a trustee to destroy the interest. The measuring period excludes the time the trustee can exercise that power because the limitation depends on the trustee's volitional capacity.
Plaintiffs, who are some of the beneficiaries under the will of Eugene H. Emmick, deceased, brought this action for damages against defendant L. S. Hamm, an attorney at law who had been engaged by the testator to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer to the second amended complaint without leave to amend. The allegations of the first and second causes of action are summarized as follows. Defendant agreed with the testator, for a consideration, to prepare a will and codicils thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15 per cent of the residue as specified in that paragraph. Defendant prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code. Paragraph Eighth of these instruments transmitted the residual estate in trust and provided that the trust shall cease and terminate at 12 o’clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over the probation of this will. After the death of the testator the instruments were admitted to probate. Subsequently defendant advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount. As a result, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator. The third cause of action alleges that after admission of the will and codicils to probate, Harold Houghton Emmick, Walton Russell Emmick, Delta Inez Spelman, and Retha Newell instituted a will contest. The executors, defendant, and the contestants reached a settlement agreement under which $10,000 would be paid to the contestants from the assets of the estate in return for releases. Defendant caused to be executed releases which did not preclude the contestants from a subsequent attack upon the validity of the testamentary instruments. As a consequence, the contestants joined in a legal attack upon the validity of the residual clause and plaintiffs would have received an additional sum of $15,000 from the estate if the releases had been prepared in accord with good legal practice. The trial court sustained a general demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal from which the plaintiffs appealed.
View caseNo. Volitional capacity exists when the mind apprehends the situation and directs the muscles to move, even if the decision occurs under intense time pressure or economic threat. Only purely reflexive or convulsive movements without any involvement of the will fall outside the category of acts.
No. Purely convulsive or reflexive movements that occur when the will is in abeyance are not acts because they lack any outward manifestation of volitional capacity. The law treats such movements as equivalent to a knee jerk or an eyelid blink in response to a missile.
A strict cognitive test asks only whether the party understood the nature and consequences of the transaction. Volitional capacity focuses on the ability to act in a reasonable manner. A party may understand the deal yet still lack volitional capacity when severe emotional conditions impair judgment and the ability to control conduct.
The period during which an interest remains subject to destruction by the uncontrolled volition of the holder is excluded because that time depends entirely on the personal choice of the power holder rather than on any fixed limitation.
…interest in possession can be conveyed. The period of time during which an interest is destructible pursuant to the uncontrolled volition and for the exclusive personal benefit of the person having such a power of destruction is not to be included in determining the existence of a suspension of the absolute power of…