Testamentary Capacity Benjamin Liptzin, M.D. Chair of Psychiatry, Baystate Health Professor and Deputy Chair of Psychiatry Tufts University School of Medicine Presentation to Estate Planning Council March 10, 2015

Criteria for Testamentary Capacity An estate planning attorney should document (or video) that testator: A. Understands the nature of the will. B. Has knowledge of the nature and extent of their assets. C. Has knowledge of persons who have a reasonable claim as beneficiaries. D. Has an understanding of the impact of distribution of the assets of the estate. E. Does not have any delusions that impact the distribution of assets. F. Has the ability to express wishes clearly and consistently.

How Would You Assess Each of the Above? A. Understands the nature of the will. B. Has knowledge of the nature and extent of their assets. C. Has knowledge of persons who have a reasonable claim as beneficiaries. D. Has an understanding of the impact of distribution of the assets of the estate. E. Does not have any delusions that impact the distribution of assets. F. Has the ability to express wishes clearly and consistently.

Undue Influence Even if someone has the capacity to participate in estate planning they may be subject to “undue influence”. How would you differentiate “influence” from “undue influence”?

Factors Suggestive of Undue Influence 1. The existence of a confidential relationship between the testator and the influencer that allowed an opportunity for the latter to control the testamentary act; 2. The influencer used the confidential relationship to create a change in the distribution of the testator's assets; 3. The presence of 'unnatural' provisions in the will; 4. The change of distribution did not reflect the true wishes of the testator; 5. The testator was vulnerable to being influenced, due to either a neurologic or mental disorder or because of specific emotional circumstances; 6. The influencer actively participated in or sought the procurement of the will; or 7. There was undue benefit to the influencer

Use of an Expert If there is a substantial estate and any question of the testator’s capacity or of being subjected to undue influence, have an experienced geriatric psychiatrist do an evaluation.

Example 1 Mrs. C was an 85 yo widow who had established an estate plan leaving her estate to her daughter, her only natural heir, with the residual going to the American Cancer Society if daughter predeceased her. Daughter did predecease her. Around that time a long lost cousin of Mrs. C, Mr. D, began to take her out to lunch and to doctor’s appointments. After Mrs. C died Mr. D presented a revised will and estate plan signed by Mrs. C leaving her estate to him instead of the ACS.

Example 1 (Questions) What would you want to know about Mrs. C’s testamentary capacity? How would you determine whether Mr. D had exercised undue influence?

Example 2 Mr. L was a 59 year old successful businessman who divorced his first wife and married his second wife. Just prior to the marriage he created a prenuptial agreement to protect his assets for the benefit of his 2 children from the first marriage. Within a year of his marriage he changed the prenup and his estate plan leaving virtually all his assets to his new wife. Over the next several years he developed severe cognitive impairment and died at 62.

Example 2 (questions) How would you determine whether Mr. L had testamentary capacity at the time he executed the revised documents knowing that he had severe dementia at the end of his life? Does it matter whether the revisions were simple or complicated? How would you determine whether his new wife exerted undue influence?

Example 3 Dr. S was a 72 year old unmarried physician with metastatic cancer and no natural heirs. Towards the end of his life and while in and out of delirium caused by pain medication he changed his will and estate plan to give more money to the daughters of some friends instead of to 2 men who he had been close to since he cared for them as patients.

Example 3 (questions) How would you determine whether someone has testamentary capacity during an episode of delirium near the end of their life?

Example 4 Mrs. A was an 88 year old widow with declining cognitive capacity over several years. Family was concerned and agreed to have a neighbor serve as her guardian and to look after her and pay her bills. Towards the end of her life she changed her will to leave money to local charities that the neighbor was involved with.

Example 4 (questions) How would you determine whether Mrs. A had testamentary capacity when she changed her will and left money to charities she had never expressed an interest in? How would you determine whether her neighbor exerted undue influence?

Questions?