Mental capacity

In this section, we will consider the requirement that
testators be of “sound mind” when deciding the terms of
their wills—recall that we want to carry out donor intent


As a general matter, the law favors findings of capacity



In later classes, we will consider other requirements to
make wills valid (e.g., witnessing)
There is a presumption in favor of testator capacity that
the challenger has the burden of overcoming
The requirements for finding capacity set a low threshold
However, we will see that social norms about family
relationships can skew the way in which courts apply the
legal standards
1
Valid wills

For wills to be valid, they must be made by
testators




Who are of sound mind,
Who understand what they are doing, and
Who are expressing their wishes voluntarily.
Accordingly, wills may be invalid if


A testator lacks mental capacity because of dementia or
other mental illness, or
The will is the product of undue influence, fraud or
duress
2
Mental capacity, p.159
Testator “must be capable of knowing and understanding
in a general way[:]
[1] the nature and extent of his or her property,
[2] the natural objects of his or her bounty (e.g., family
members), and
[3] the disposition that he or she is making of that
property,
And must also be capable of
[4] relating these elements to one another and forming an
orderly desire regarding the disposition of the property.”
Restatement (Third) of Property: Wills and Other Donative Transfers §8.1(b) (2003)
3
Important considerations
for challenges to capacity



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Burdens of proof
Trial before jury or judge
The role of social context in defining mental
capacity and undue influence
The importance of planning when a will
contest looms

We’ll discuss this topic next class
4
What were the facts in
Washburn, p. 159
5
In
In
re
Estate
of
Washburn
re Estate of Washburn (1)
690 A.2d 1024 (N.H. 1997)
Margaret
Katherine
??
Catherine
(niece)
Barbara
(caretaker)
6
Burdens of proof, minority
(including Indiana)


Initial presumption that the testator possesses mental
capacity
Contestant may offer evidence to rebut the presumption


What evidence was offered in this case?
If presumption is rebutted, proponent of the will must
prove mental capacity by a preponderance of the
evidence

The probate court concluded that the caretaker failed to
do so—was there sufficient evidence for the probate
court’s holding?
7
The importance of burdens
of proof


The appellate court didn’t decide de novo, but only
whether the probate court acted reasonably. What
evidence supported the probate court’s holding?
Note other questions that were lurking. Was the second
will valid? Was there undue influence by the caretaker?
8
What were the facts in
Wilson, p. 161?
9
Wilson v. Lane,
Wilson
v.
Lane
614 S.E.2d 88 (Ga. 2005)
16 Blood Relatives
Katherine
Lane
Jewel
J. Greer
(caretaker &
executrix)
10
Note the court’s focus on
testamentary capacity


Ms. Greer may have suffered from some diminution in
mental capacity, but did she lack the ability to make a
rational decision about the disposition of her estate?
The question was whether she was able “to form a
rational desire regarding the disposition of her assets.”
Could she?
11
What about the letter by her
physician the year before the will
was executed, p. 162?
12
Burdens of proof, majority


Proponent of will must introduce prima facie
evidence of due execution
Burden switches to contestant to prove
mental incapacity by a preponderance of the
evidence

UPC § 3-407
13
Why did Washburn come out
differently than Wilson?
14
Lawyer’s responsibility

The lawyer generally should not prepare a will, trust
agreement or other dispositive instrument for a
client who the lawyer reasonably believes lacks the
requisite capacity. On the other hand, because of
the importance of testamentary freedom, the
lawyer may properly assist clients whose
testamentary capacity appears to be borderline. In
any such case the lawyer should take steps to
preserve evidence regarding the client’s
testamentary capacity.

ACTEC Commentary, page 165 (emphasis added)
15
Ante-mortem probate?

Only possible in a few states, and not very useful


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Proceedings are costly
Testator may want to revise the will—do you need a new
ante-mortem probate?
The process may create intra-familial conflict, or
legitimate challenges might be suppressed by the
reluctance of potential beneficiaries to challenge the
testator
16
Capacity thresholds
Lesser
Capacity
Required
Form of
Legal
Obligation
Competing
Policies
Greater
Capacity
Required
Marriage
Will
Irrevocable
Lifetime Gift;
Contract; Deed
Protection
of Property
v.
Individual
Autonomy
Protection of
Property
v.
Testamentary
Freedom
Protection of
Property
v.
Freedom of
Contract
17
Capacity for irrevocable gift

To make an irrevocable lifetime gift, not
only must one have capacity to make a
will, but one “must also be capable of
understanding the effect that the gift
may have on the future financial
security of the donor and of anyone
who may be dependent on the donor.”

Restatement (Third) Property, page 166
18
Insane delusion
Mental Capacity
Insane
Delusion
The testator may
have sufficient
mental capacity
generally, but an
“insane delusion,”
usually about a
family member,
may affect the
disposition of the
estate
19
Proving insane delusion
Is
Delusion
Insane?
Did
Delusion
Cause
Bequest?
Majority Rule
Minority Rule
A delusion is insane even
if there is some factual
basis for it if a rational
person could not have
drawn the same
conclusion.
Insane delusion materially
affected or influenced the
will.
If there is any factual
basis for the delusion, it is
not insane.
Insane delusion might
have caused or affected
the will (i.e., presume
causation if there is an
insane delusion + an
unnatural disposition)
20
In re Strittmater, p.169
In
re
Strittmater
53 A.2d 205 (N.J. Ct. Errors & Appeals 1947)
Cousins
Louisa F.
Strittmater
The outcome was a reflection of
contemporary social mores. Undoubtedly,
some decisions today will look as
problematic in future decades.
National
Woman’s Party
21
What were the facts in
Breeden, p. 171?
22
Did Spicer possess testamentary
capacity, and did he suffer from
an insane delusion?


This case illustrates how low the threshold
can be for finding testamentary capacity
Colorado applies

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Majority rule for burdens of proof for
testamentary capacity (p. 175)
A hybrid of majority and minority rules for insane
delusions (pp. 175-176) (majority rule on
causation; minority rule on whether the delusion
is insane)
23
Breedenv.v.Stone
Stone (1)
Breeden
992 P.2d 1167 (Colo. 2000)
Petitioners
Vic Sr.
Respondent
Vic
Holly
Spicer
Breeden
Sydney
Stone
24
Test for testamentary capacity—
Colorado essentially follows
Restatement, p.175
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Testators must

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Understand the nature of their act;
Know the extent of their property;
Understand the proposed testamentary disposition;
and
Know the natural objects of their bounty
The will must represent the testator’s wishes
The test is roughly the same from state to state
25
Did Breeden have capacity?
What suggested he did not?
26
Evidence of Breeden’s capacity
27
Evidence of Breeden’s capacity

Did his delusions influence his disposition?
28
Breeden
v.v.Stone
(2)
Breeden
Stone (2)
1996 Holographic Will
1991 Holographic Codicil
29
B. Undue
Influence
Lord Justice Hannen
30
Undue influence
 We continue our discussion of doctrines that
address the question whether a will or trust
is a genuine expression of donor intent
 There are general principles for defining
“undue influence,” but this is one of the
many doctrines for which one can
understand the contours of the doctrine only
by reading a lot of cases that apply the
doctrine
31
Undue influence
“A donative transfer is procured by undue
influence if the wrongdoer exerted such
influence over the donor that it[:]


overcame the donor’s free will and
caused the donor to make a donative transfer
that the donor would not otherwise have
made….”
Restatement (Third) of Property: Wills and Other Donative Transfers §8.3(b) (2003).
32
Undue influence
 Inference of undue influence can be raised when
 Donor was susceptible to undue influence
 Alleged wrongdoer had opportunity to exert
undue influence
 Alleged wrongdoer had a disposition to exert
undue influence
 There was a result appearing to be the effect
of undue influence
Restatement (Third) of Property: Wills and Other Donative Transfers §8.3 (2003), comment.
33
Estate of Lakatosh, p.182
656 A.2d 1378 (Pa. Super. 1994)
Rose
Lakatosh
Roger
Jacobs
Estate
Lawyer
34
Estate of Lakatosh
 Lakatosh provides an easy case of undue influence
 Roger exploited an elderly woman, Rose
 He visited her at least once a day, and helped her around the
house and with her errands
 After gaining her confidence and trust and only a few months
after they met, Roger got her to give him power of attorney and
used his cousin to draft the documents
 When Roger took Rose to sign the will, she was not focused or
coherent
 He then began to drain her estate for the benefit of himself and
his friends.
 What if Roger had not drained the estate while Rose was
35
alive?
Note the possibility of lack of
capacity or insane delusion
 If she wasn’t focused or coherent, and she
was out of touch with reality (p.183) when
she executed the will, did she know what
she was doing?
 Also, she believed that her nephew had
threatened to rob and kill her and that he
was persecuting and torturing her.
36
Presumptions & Burden Shifting
Presumption of
Confidential
Suspicious
+
= Undue Influence
Relationship
Circumstances
(Burden Shifting)
Types of Confidential Relationships:
 Fiduciary (attorney, appointed agent)
 Reliant—special trust and confidence (financial adviser, physician)
 Dominant-subservient (feeble adult and caregiver or adult child)
Examples of Suspicious Circumstances:
 Secrecy or haste
 Participation of wrongdoer in drafting of will
 Reasonable person would regard it as unnatural, unjust or unfair
 Donor’s attitude toward others changed by reason of his relationship
with the alleged wrongdoer
37
Moses, p.186


As with Strittmater, we have a case whose
outcome reflects social attitudes of the day much
more than principles of undue influence.
What’s the story here?
38
In re Will of Moses,
In
Moses
227re
So.Will
2d 829of
(Miss.1969)
Husband 1
Husband 2
Fannie
Moses
Sister
Husband 3
Clarence
Holland
(lawyer and
paramour)
39
Moses, p.186

Do we have a confidential relationship?

Were there suspicious circumstances?
40
Moses, p.186

What was really going on ?
41
Moses, p.186

Why shouldn’t the court have been suspicious (i.e., why were
there good reasons to uphold the will)?
42
Kauffman, p. 191


Robert Kauffman was a multimillionaire by virtue of
inheritance and developed an intimate relationship
with Walter Weiss after moving from DC to NYC to
establish a life independent of his family
Between 1951 and 1958, Robert executed a series of
wills, gradually giving more of his estate to Walter
and less to his family.


He also wrote a letter with the 1951 will that was attached
to each successive will explaining to his family why he was
“eternally grateful” to Walter
Robert’s family did not like Walter, whom they
thought gave Robert interfering business advice
about the family-owned Kay Jewelry stores
43
In re Kaufmann’s Will, p. 191
Kaufmann’s
247 N.Y.S.2dInWillre664
(App. Div. 1964),
aff ’d, 205 N.E.2d 864 (N.Y. 1965)
Family:
Kay Jewelry
Robert
Kaufmann
Walter
Weiss
44
Was there undue influence,
pages 184-185?

Was there a confidential relationship?

Were there suspicious circumstances?


Another case reflecting the social mores of
its time
What advice would you give a client like
Robert?
45
What were the facts in
Lipper v. Weslow?, p. 193
What were the grounds for a claim of undue influence?
46
Lipper v. Weslow
Lipper v.
Weslow
369 S.W.2d 698 (Tex. Civ. App. 1963)
Sophie
Block
Mr.
Lipper
G.
Frank
Irene
Mr.
Weslow
Julian
Julian
Bernice
Julia
Alice
47
Was there undue influence?

What was unusual about the court’s legal analysis?

What was bad about the son’s writing of the will?

Was there sufficient evidence to overcome the claim
of undue influence?
48
Bequests to attorneys

Undue Influence


Unethical Conduct


Many courts hold that a presumption of undue
influence arises when an attorney-drafter receives a
legacy, except when related to the testator.
“A lawyer shall not solicit any substantial gift from a
client, including a testamentary gift, or prepare on
behalf of a client an instrument giving the lawyer or a
person related to the lawyer any substantial gift unless
the lawyer or other recipient … is related to the
client.” Model Rule and Ind. Rule 1.8(c)
Fiduciary Appointments

“In obtaining the client’s informed consent to the
conflict, the lawyer should advise the client
concerning the nature and extent of the lawyer’s
financial interest in the appointment, as well as the
availability of alternative candidates for the position.”
Model Rule 1.8(c), comment
49
The problem of the dead hand


The controlling consideration in determining
the meaning of a donative document is the
donor’s intention.
The donor’s intention is given effect to the
maximum extent allowed by law.
Restatement (Third) of Property:
Wills and Other Donative Transfers §10.1 (2003) (p.27)
50