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.

Florida and many states, through adoption of relevant portions of the Uniform Probate Code and decisional case law, require that in order for a person to make a valid will, the person must: (1) understand the nature of the testamentary act; (2) understand and recollect the nature and situation of his or her property; (3) have knowledge of the persons who are the natural objects of his or her bounty; and (4) know the manner in which the disposition of the property is to occur.

Just how does one go about determining whether a person possesses the requisite mental capacity to make a will? Many people believe that one of the safeguards against having people who lack testamentary capacity making wills is the presence of a lawyer involved in the will drafting and execution process. See James E. Spar and Andrew S. Garb, Assessing Competency to Make a Will, 149 Am.J.Psychiatry 169 (1992) and Arthur C. Walsh et al., Mental Capacity: Legal and Medical Aspects of Assessment and Treatement, Tax & Estate Planning Series (1994). The American Bar Association and others have encouraged practitioners to use a Legal Capacity Questionnaire. This test was created by and for attorneys to assist them in dealing with the issues of client testamentary capacity prior to making a will. It has been described as the best “capacity screening tool for attorneys engaged in probate law practice with older clients and clients with cognitive disabilities.” Daniel Marson, Justin S. Huthwaite and Katina Hebert, Testamentary Capacity and Undue Influence in the Elderly: A Jurisprudent Therapy Perspective 28 Law & Psycho.Rev. 71 (2004).

The Legal Capacity Questionnaire

The Legal Capacity Questionnaire is separated into three sections (general information, a client information section, and the questionnaire). The form requires the client to answer true/false questions, provide client information and provide open-ended decisions. A scoring system is used to assess capacity and provide guidance for attorneys. For those situations where a client scores “high capacity” the attorney may go ahead with the will preparation and execution “with confidence.” Other scores may categorize the client with “borderline capacity” or “low capacity” and the attorney is then required to perform further investigation and perhaps consider a referral to a professional for a formal diagnosis. However, my experience with the form reveals that one of its weaknesses is it fails to address the issue of whether the person actually understands a will and also fails to look into the issue of whether the person has been unduly influenced in their estate planning objectives.

The Testamentary Capacity Instrument

In my view, the limitations of the Legal Capacity Questionnaire may be remedied through application of a psychometric instrument developed by Daniel Mason and discussed in his article cited above. This instrument is known as the Testamentary Capacity Instrument (TCI). The TCI measures capacity according to the four elements for testamentary capacity required by Florida Law and discussed above. Importantly, each element is based on the person’s ability to recall or remember information pertinent to the execution of a will. More importantly, however, is the TCI’s section that tests the person’s susceptibility to undue influence.

The Legal Capacity Questionnaire and the Testamentary Capacity Instrument are the only clinical models that I have found in my practice that address testamentary capacity. The lack of models is a shortcoming of our probate law and a detriment to the public generally. This is especially true in light of the recognized increase in the need for resolution of legal disputes concerning inheritance and property disposition among our elderly population. We need to find a way to incorporate the advancements and achievements of mental health science and practice into our probate practice and discover methods for psychological clinicians to contribute to probate litigation.

Surprisingly, there has been very little in the way of studies that have examined undue influence and testamentary capacity. One of the more well known studies conducted by used survey data from probate judges across the United States on the issues of mental capacity and undue influence. The study concluded that probate judges demonstrated a “broad conception of undue influence” and a complete lack of any consensus or agreement among judges as to a time-line loss of different legal capacities. See James Spar et al., Assessing Mental Capacity and Susceptibility to Undue Influence, 13 Behave.Sci.&L. 391 (1995).

One way we can all begin to advance in this area is for probate practitioners to learn appropriate conceptual knowledge, clinical procedures, specialized knowledge of the elderly and disorders of aging, and the tests described above. This will be easier to accomplish with help from the medical and psychological profession. Further, probate practitioners need to know when they have a sufficient evidentiary foundation for making conclusions regarding testamentary capacity and undue influence.

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.

Why Not Examine the Testator During Their Life? What about a probate procedure that offered individuals the opportunity to confirm their testamentary capacity during their life? This would certainly eliminate some of the evidentiary obstacles mentioned above and would streamline the probate process and eliminate the log jam of litigation in our probate court system. Believe it or not, this idea was entertained by many legal reformers years ago and the State of Michigan even went so far as to codify the policy in a statute for the probate of wills of living testators. See 1883 Mich.Pub.Stat. 17 (repealed in 1885-setting forth procedure for pre-death probate-the statue was declared unconstitutional three years later on grounds that it enabled the testator to circumvent the inchoate rights of the surviving spouse and child as well as its failure to ensure finality of the probate judgment. ) For some reason, there has been relative silence on this area of reformation of our probate laws for many years. See Ohio St.J on Disp. Resol. 663 (1999)(identifying Ohio, Arkansas and North Dakota as only states with pre-death probate statutes)

Talk to the Professor from Yale A comprehensive study by a Yale Professor analyzed cases where a will was offered for probate when the testator may have lacked testamentary capacity. See, Milton D. Green, Proof of Mental Incapacity and the Unexpressed Major Premise, 53 Yale Law Journal 271. Professor Green’s study concluded that courts generally approved wills that treated family members fairly even though there was expert and other evidence of the testator’s deficient cognitive abilities. Professor Green also concluded that wills that treated family members unfairly were generally invalidated. Many legal observers criticize our legal system and probate process because, when it comes to determining whether a will is invalid because of a testator’s lack of capacity, it evaluates the end result-the content of the will and its fairness to family members, rather than examining the testator’s ability to engage in the will making process.

Change You Can Believe In “The sole certainty in testamentary capacity case law is unpredictability. Untold numbers of disappointed heirs have challenged testamentary capacity to induce devisees to settle will contests rather than face the uncertainty of litigation.” Pamela Champine, Expertise and Instinct in the Assessment of Testamentary Capacity, 51 Villanova Law Review 25 (2006). In an effort to mobilize procedural reform in the probate process, some legal observers have begun to voice the need for change and reformulation of the testamentary capacity doctrine. One of the primary reasons for seeking reform is to give lawyers and judges some measure of predictability when it comes to assessing the merits of a testamentary capacity case. A cursory examination of the decisional case law in Florida reflects that it is not difficult to find decisions probating wills executed by testators in extraordinarily weakened or altered mental and medical states. For example, in the case of In re Wilmott’s Estate, 66 So.2d 465, 467-68 the Florida court found that a testator who ingested narcotics and received delivery of an “inordinate quantity” of those narcotics at his home on the day of the will’s execution possessed testamentary capacity! See also, Fisher v. Jewell, 2002 WL110440 (Ohio) where the court granted probate despite the contrary opinion of the physician who examined the testator the day before the will was executed and three days afterward. Compare, Schindler v. Schindler, 119 S.W.3d 923 (Tex.App. 2003) where court found incapacity and invalidated will based on evidence of physical impediments, senile dementia, and Alzheimer’s despite testimony of five attesting witnesses opining that testator had capacity. One observer has noted that “the few courts addressing the issue have consistently held that testators with mild or mild-to-moderate Alzheimer’s disease are competent to execute wills based upon testimony of those who interacted with the testator on the day the will was executed, often contrary to a physician’s opinion.” Warren F. Gorman, M.D., Testamentary Capacity in Alzheimer’s Disease, 4 Elder L.J. 225 (1996). This area of the law screams for attention in order to address this problem of unfairness and unpredictability for litigants and their legal counselors.

One reform that might help the probate process is for our legislature to acknowledge the conclusions of Professor Green’s study and also recognize that Florida courts are not immune from the tendency to give more weight to the “moral aspects” of the will-its fairness to family-than medical and psychological evidence of the testator’s cognitive ability. Another idea is to reexamine the viability of some type of lifetime testamentary capacity assessment. I won’t pretend to know the exact language of a statute, but it seems we have learned a lot about human cognition, mental health and psychology since the last time anyone seriously considered pre death probate process. Given the geriatric population of our state and the tidal wave of probate litigation that is presently upon us, coupled with the increasing number of individuals who receive mental health treatment and the advances we have made in the field of psychology, we should at least examine carefully the idea of bringing a testator before the court or some other legal authority and allow for a neutral and independent assessment of the testator’s cognitive capabilities.

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.

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.