A Call For Help from the Probate Bar to the Psychology Clinicians

The dramatic increase of cases challenging the validity of wills based on the deficient mental capacity of the person making the will has been measured, verified, and commented on by many legal observers. The reason for the increase in probate litigation is subject to debate; however, I have found in my discussions with other trust and estate practitioners that most will agree the relevant factors causing the increase include the rapidly growing number of older persons with medical and psychiatric problems affecting their mental and cognitive ability; the tremendous transfer of wealth taking place between the World War II and baby boomer generations and the change in the traditional nuclear family. See Daniel Marson and Laurie Zebley, The Other Side of the Retirement Years: Cognitive Decline, Dementia, and Loss of Financial Capacity, 41 Ret.Plan. 30 (2001); Harold T. Nedd, Fighting Over the Care of Aging Parents: More Siblings Clashing Over Money and Control, USA Today, July 30, 1998, at 1A. Read the rest of this entry

Previous blog posts have discussed the fundamentals of will contests in Florida. These actions occur when a will is offered for probate (See Post dated October 28, 2008 What is the Definition of Probate) which is always after the testator has died. One of the most common grounds for a person seeking to invalidate a will offered for probate is that the will was executed at a time when the testator (the person signing the will) lacked testamentary capacity. The legal standard for testamentary capacity is that the testator knew the nature and extent of his or her property, the natural objects of his or her bounty (property) and the contents of his or her estate plan. See, In re Estate of Tolin, 622 So.2d 988, 990 (Fla. 1993).

Since the person signing the will isn’t alive to testify or be examined in order to determine testamentary capacity, the court must rely on other evidence, such as: observations of the testator’s behavior reported by neighbors and friends; medical evidence during the time of the will signing and the content of the will itself, just to name a few. My experience as a probate litigator is that there is invariably a contest of competing evidence of the testator’s capacity-for example, there is usually expert evidence that conflicts with non-expert evidence given by those who knew the testator. Read the rest of this entry

WILL CONTEST FLORIDA

Proving Incapacity: How Can You Determine Whether Dementia Played a Role in the Will Change? Tested Methods for a Challenging Evidentiary Task

In an earlier blog, I reminded readers that Florida is home to the nation’s largest geriatric population, many of whom are vulnerable to exploitation due to the infirmities of age and diminished mental capacity. A recent study discovered that the prevalence of dementia is estimated to double every five years in the elderly, growing from a disorder that affects 1 percent of persons 60 years old to a condition afflicting approximately 30 percent to 45 percent of persons 85 years old.

It Just Doesn’t Make Any Sense

Many times I am asked to represent persons who don’t live in Florida and don’t see their elderly Florida relatives on a daily basis. During their visits to Florida they notice a change in their elderly relative’s behavior, but don’t take any drastic measures because they don’t fear that their relative is in danger and because they are only visiting and don’t want to upset their elderly relative. After death, these persons then discover that their relative wrote a new will at the eleventh hour of their life with provisions that don’t make any sense. To the now disinherited family member who is looking for answers, I often ask whether their elderly relative could have been suffering from diminished capacity to an extent that the should be invalidated.

The Doctor Is In

It is at this point that the inquiry delves into a myriad of factors. One of the first things I look at is the medication that the elderly person was taking. Many doctors believe that some of the many forms of dementia are treatable and reversible and will make efforts to treat the diseases through various prescription drugs, for example: Aricept. Also, elderly persons frequently experience battles with debilitating depression which physicians will attempt to combat with prescription drugs. Often, there will be a change in dose or other medical evidence indicating whether or not the elderly person responded favorably to the medication or whether their condition continued to deteriorate.

Capacity

In Florida, testamentary capacity is the ability of a person to make a valid will. It requires that the person making the will understand the nature and extent of the property they own at the time the will is executed; the nature and effect of signing the will and an understanding of the planned disposition in the will. Finally, and most importantly, the person making the will must have knowledge of their natural relatives and the nature of their relationship with the person making the will.

Partial Incapacity Florida is unique in that its state decisional case law recognizes that a person might not lack capacity all the time for all purposes. What has developed in Florida is a principle of law called “partial insanity.” Under this principle, partial insanity may invalidate a will. See, In re Supplee’s Estate, 247 So. 2d 488 (Fla. 2d DCA).

Evidence I have had success where family members kept notes that were contemporaneous with their observations of their elderly relative, or where there is some evidence other than their own testimony pointing to the conclusion that their relative was suffering from progressive forms of dementia that affected their judgment at the time they executed the will. This evidence can take many forms, for example, I had one case where the evidence included my client’s father who went out driving a golf cart in his underwear. This one episode, coupled with other evidence that he had forgotten that one of his pieces of real estate had already been sold years ago, led to the conclusion that he did not understand the nature of his property at the time he executed the will.

WILL EXECUTION FLORIDA

Tale of the Tape: Should a Lawyer Videotape the Execution of a Will?

I am frequently asked by probate administration attorneys whether they should make a video recording of a will execution in cases where they anticipate there will be probate litigation involving a will contest after the testator’s death. While video recording generally is considered relevant evidence in a trial involving allegations of undue influence and testamentary capacity, I have experience mixed results from the use of these recordings. This is due primarily to the elementary psychological precept that different people perceive the same stimuli and arrive at quite different conclusions. Nevertheless, there are a few fundamental rules to keep in mind when a probate administration attorney decides or is asked to video record a will execution for potential use in a later probate litigation trial.

Discretion Remember that the ultimate decision of whether the video recording will be admitted into evidence is within the trial court’s discretion. I heard of one case where a probate judge refused to allow the videotape into evidence because the videotape was being offered in an attempt to probate a document as a will rather than evidence of the decedent’s testamentary capacity.

We are All Witnesses Remember too that there are some basic evidentiary matters that affect the admission of a video recording. If the videotape is to be considered for admission into evidence, in addition to it being determined relevant (within the probate judge’s discretion), a proper foundation must be offered by the probate litigation attorney at trial. Simply stated, this means that the witnesses to the will must be readily identifiable so that they can be summoned to testify at the trial concerning the details of the execution, and more importantly, that the videotape is a fair and accurate depiction of the events which were taped.

No Weak Links in the Chain Equally important in the evidentiary analysis of whether a videotape of a will execution is admissible is whether or not the attorney supervising the execution (or some other person involved in the execution) can establish that the tape hasn’t been tampered with or wasn’t accessible to external forces which could negate its authenticity. What this means is that if the will execution took place in your office, you must carefully secure the tape and make a contemporaneous memorialization of the tape’s location (and record each time it is moved and identify its handlers).

Don’t Hedge Your Bets Finally, it’s probably not a good idea to either believe or advise your clients that the video recording will guarantee a successful outcome in a will contest after death. While there are no Florida appellate cases directly on point, a Georgia Supreme Court probate case is illustrative of the unexpected results that arise from the different perceptions people have of the same video recording. In King v. Brown, 280 Ga. 747, 632 S.E.2d 638, 06 FCDR 2268 (Ga., 2006). Here, Palmer Rufus Bell had six children. In July 2002, Mr. Bell executed a will in which two of his children shared equally (the other children were disinherited). The probate administration attorney, who presciently recognized the likelihood of a will contest, made a video recording of the will execution. In 2003, Mr. Brown executed another will which was videotaped. At trial, a jury found that the will offered for probate, and which was videotaped, was invalid due to undue influence and incapacity! The jury’s conclusion was even upheld on appeal and affirmed by the Georgia Supreme Court, which noted that the jury can watch the video and draw its own conclusions.