Also known as: volitional capacities · volition
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
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.
No. 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…