Lack of Capacity

Under the law, any person executing a last will and testament and/or a trust document is required to have the requisite legal capacity to do so. Relatively speaking, legal capacity is not an extremely high threshold. Nonetheless, it is almost always at the forefront of an action seeking to revoke a will and/or invalidate a trust. The law requires that any person executing a will or a trust have “testamentary capacity”—the ability to understand the nature of his or her assets coupled with the ability to understand those to whom those assets are to be distributed.

A will or a trust, and any amendment thereto, can be declared void if the decedent lacked testamentary capacity as of the date of execution (signature) of the same. Although every case is different, proving lack of capacity typically requires a combination of testimony and documentation.

Testimony comes in the form of both layperson accounts of the decedent’s cognitive abilities, as well as expert testimony regarding the decedent’s medical and mental health. This testimony is only relevant as to the time at or shortly before the execution of the documents being contested.

In litigation of this kind, medical records also play an important role in allowing a judge and/or a jury to make findings of fact regarding whether or not a decedent lacked the requisite testamentary capacity. Obviously, diagnoses of memory disorders, Alzheimer’s disease, dementia, psychosis, depression, and/or other conditions that impact one’s ability to recall or remember things, short-term and long-term memory issues, forgetfulness, and the like are all of particular importance to any such determination. Likewise, documentation regarding medications used to treat such conditions are also utilized to further one side of the argument or the other regarding the capacity of the decedent at the time he or she signed a will and/or trust document.

Of course, litigation of this sort becomes very involved and very personal. Therefore, diligent efforts and timely attention to estate planning are extremely important. If any of these issues are even a possibility, full disclosure to your estate planning attorney is essential. Withholding information of this kind is a big mistake and could end up causing catastrophic losses attendant to unnecessary litigation.

Upon full disclosure, your estate planning attorney can take steps to ensure that your file is properly documented and expert and layperson accounts of your current condition (contemporaneous with the actual signing of the will and/or trust) may be preserved. If you do not share such concerns with your attorney, you are inviting problems in the future and eliminating the most effective means by which your estate planning attorney can properly document the situation.

This is not to say that your estate planning attorney is going to attempt to cover up your condition. Quite to the contrary, your estate planning attorney, once made aware of any potential for an issue of contest in the future, can obtain current evaluations from your treating physicians, sworn statements contemporaneous with the execution of your will and/or trust, and will be able to conduct a thorough examination of you in advance of and on the date of execution of the will and/or trust.

These simple efforts can mean the difference between a situation where your true condition is properly and thoroughly documented and one in which years down the road, contestants attempt to paint a different picture of you that is not in line with reality.

By way of example only, assume that a person who has now passed away (referred to as a “decedent”) had an estate plan that originally left everything in trust, and that the trust left everything to be divided in equal shares to Ted, Sally, and Bob. Five years after the initial estate plan is developed, the decedent had a falling out with Bob, contacted his/her attorney and requested that an amendment be prepared that entirely eliminated Bob as a beneficiary. During the five-year period between the original estate plan and the amendment, the decedent developed some symptoms that resulted in an entry in his medical record of “memory disorder.” Being a good client, the decedent told his estate planning attorney all about it. The estate planning attorney was able, with the authorization of the decedent, to obtain the medical records in advance and to have the decedent’s physicians conduct an examination of the decedent immediately before execution of the amendment to determine the true cognitive abilities of the decedent and to determine whether or not the decedent had testamentary capacity. The examination is completed, a sworn report is prepared by the treating physician and maintained in the file in case the same should ever become necessary. In addition, a thorough inquiry is made of the decedent in the presence of the witnesses and a notary at the time of execution, all in order to establish that the decedent had full testamentary capacity to sign the amendment. The use of additional witnesses then is statutorily required is also permitted to allow for further confirmation of the testamentary capacity of the decedent. Independent third-party witnesses and notaries could also be utilized to avoid the situation where witnesses and notaries in the employ of the law firm who prepared the document could potentially be cross-examined regarding purported bias. The decedent may also be inclined to write a handwritten note stating that it is his desire to eliminate Bob as a beneficiary. The list of prophylactic measures goes on and on; all designed to rule out any possibility that the decedent lacked sufficient testamentary capacity. Thereafter, the decedent passes away and Bob hires an attorney to attempt to contest the amendment. Consider the effectiveness of the decedent’s attorney providing to Bob’s attorney: (1) a sworn report from an actual treating physician setting forth the entirety of the details regarding the examination, evaluation, and opinions rendered by the physician demonstrating the testamentary capacity of the decedent specifically at the time of execution of the amendment, (2) affidavits from the witnesses to the amendment who provide their own account of the date of execution of the amendment, their personal observations of the decedent, the inquiries made of the decedent in their presence establishing their capacity, and the demeanor and stated intent of the decedent at the time, and (3) even perhaps a handwritten letter from the decedent at the time confirming the elimination of Bob as a beneficiary. Having handled the prosecution of many will, trust, and amendment contests, the provision of this type of evidence in advance would certainly discourage any litigation attorney from attempting to move forward on a contingent fee basis or otherwise in any effort to represent Bob.

Compare the foregoing situation with one where the decedent never tells his estate planning attorney about the entries in his medical record hinting at a memory issue or disorder. Imagine the same situation but without measures having been taken to properly document and preserve the truth of the situation regarding the capacity of the decedent. An attorney representing Bob is simply told that the decedent was previously leaving Bob 1/3 of his estate, but just recently the decedent changed his estate plan and disinherited Bob. Bob tells his attorney that the decedent was suffering from some medical problems even before the amendment was executed, that he was always forgetting things, that he should not have been signing any amendments to his estate plan in his condition, and maybe even has another friend or relative mirror his comments because of some previous contact with the decedent that seemed off. Knowing that these matters come down to the testimony of a few people, Bob’s attorney files the action and proceeds to fight the matter for several years simply because of the amounts involved and the potential for recovery. This litigation results in substantial defense costs to the estate of the decedent. Although the estate ultimately prevails in the action, the litigation by Bob has substantially diminished the value of the estate and ultimately the net amount realized by Ted and Sally. All of this could have been avoided had a few additional steps been taken to properly document the file, inquire of the decedent, and maintain such proof in the event it even became necessary. The amount of time and effort needed to take “a step in time” is nothing compared to the amount of time, effort, money and aggravation that are visited upon true beneficiaries of an estate unnecessarily impacted by meritless litigation.

To the extent that you disclose information to your estate planning attorney and subsequent inquiry reveals that you do not possess the requisite testamentary capacity to execute a will, a trust, and/or an amendment to the same, this is also to your benefit. Not only will you avoid having to expend money on a plan or an amendment that will be invalidated later, you will allow for your estate planning attorney to consider other legal options available to you. In some instances, durable powers of attorney and other legal options are available. Regardless of the ultimate outcome, the bottom line in all of these situations is that the avoidance of and/or minimization of litigation should be a top priority.