Blogs from December, 2008


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 to 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 the 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 Treatment, 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 the 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 the 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 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.


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