Blogs from November, 2008


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.

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 See 1883 Mich.Pub.Stat. 17 (repealed in 1885-setting forth procedure for the pre-death probate-the statute was declared unconstitutional three years later on grounds that it enabled the testator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 judge. ) 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 were an 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 the court found in capacity and invalidated will base on the evidence of physical impediments, senile dementia, and Alzheimer’s despite the 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 the 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 the 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.


Most Recent Posts from November, 2008