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The Daily Digest, 2/22/11

Cases challenging a decedent’s testamentary capacity usually involve both sordid and juicy facts. The higher the value of the estate, the more interesting the facts become. Neuropsychologists have gotten in on the action by providing expert advice about assessing testamentary capacity.

The cases today present the use of cognitive neuroscience to challenge the validity of executed wills. These cases raise whether brain damage strips a person of their capacity to execute a will, and the extent to which cognitive deficits make a person susceptible to undue influence (by their third wife).

Brain Dysfunction, Wills, and Testamentary Capacity
Parish v. Parish, 704 S.E.2d 99 (Va. 2011)
In this appeal of a will contest, the court considered whether the circuit court properly found that the decedent, an “incompetent” with encephalopathy with appointed conservators, had testamentary capacity and was not subject to undue influence in executing his will. The decedent suffered a head and spinal cord injury in 1982 due to being struck in the head with a metal pipe while at a bar. He recovered $3.5 million in a civil suit concerning the injury and one year later was declared incompetent due to encephalopathy, a “[g]eneralized brain dysfunction marked by varying degrees of impairment of speech, cognition, orientation, and arousal.” While in a nursing facility the decedent executed a will, which his son challenged claiming he lacked testamentary capacity due to his encephalopathy. On appeal, the court explained that “[m]ental weakness is not inconsistent with testamentary capacity. A less degree of capacity is requisite for the execution of a will than for the execution of contracts . . . it is sufficient for the making of a will that the testator understands the business in which he is engaged, his property, the natural objects of his bounty . . . The condition of being unable, by reason of weakness of mind, to manage and care for an estate, is not inconsistent with capacity to make a will.” The court upheld the validity of the will and found the decedent had testamentary capacity and was not subject to undue influence.

Brain Dysfunction, Wills, and Undue Influence
In re Estate of Johnson, 2011 WL 535104 (Tex. Ct. App. 2011)
This appeal arises from a probate proceeding in which a jury found the decedent executed certain wills and trusts as a result of undue influence by his third wife. Conflicting expert testimony was presented regarding the decedent’s susceptibility to undue influence. The evidence established he was an alcoholic, and psychological and medical tests showed that the alcohol had an adverse effect on his mental state. The decedent had received both in-patient and out-patient alcohol rehabilitation services during his life. During one of his rehabilitation efforts, he had extensive testing done that showed he had organic brain syndrome and memory dysfunction. A neuropsychologist called by the Appellees, testified that tests taking at that time showed the decedent had significant memory deficit. Experts testified that the decedent’s permanent cognitive defects, continued drinking and personality features made him vulnerable to undue influence by his third wife. On appeal, the court found the evidence presented legally and factually sufficient to support a finding that the wills and trusts rejected by the jury would not have been executed but for the undue influence.

One Response to “The Daily Digest, 2/22/11”

  1. Definitely makes you wonder if a psychiatrist should always cosign a will to verify that the decedent was truly”of sound mind” when will was executed. I have seen presented cases of several heavily disputed wills when the decendent was extremely wealthy and so well-insulated that there is a definite question of undue influence. Wonderful case for dying poor.

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