If you’re representing a plaintiff in an undue-influence or testamentary-capacity case, one of your first challenges is mapping out the questions you’ll be asking when you depose the lawyer who drafted the will or trust being challenged. If you’re representing the estate defending against this challenge, you’ll want to know how best to build a deposition record that dissuades the challenger from proceeding with his or her case, or encourages an early settlement on favorable terms. Why is the deposition so important? Because the vast majority of contested probate proceedings settle before trial, so your depositions may be the only “trial” you’ll ever have, and will certainly tilt the negotiating leverage to one side or the other in any settlement negotiations.
And lest we forget our estate-planning brethren, if you’re an estate planner and for some reason you believe the estate planning documents you’re working on are likely to end up being challenged, then you’ll want to be especially sure that [a] your client is competent and not the victim of undue influence and [b] that you build a record documenting your conclusions.
In all of these circumstances a good checklist of questions is worth its weight in gold. And a good starting point for building this kind of checklist is a recent article in the American Journal of Psychiatry entitled Assessment of Testamentary Capacity and Vulnerability to Undue Influence, by Kenneth I. Shulman, M.D., F.R.C.P.C., Carole A. Cohen, M.D., F.R.C.P.C., Felice C. Kirsh, LL.B., Ian M. Hull, B.A., LL.B., and Pamela R. Champine, J.D., LL.M. Here’s an excerpt:
Documentation for Assessment of Testamentary Capacity and Undue Influence
In the absence of a validated assessment instrument, we propose that in addition to the traditional Banks v. Goodfellow criteria, the following issues should be addressed and documented in a forensic assessment, whether it is contemporaneous or retrospective:
- Rationale for any dramatic changes or significant deviations from the pattern identified in prior wills or previous consistently expressed wishes regarding disposition of assets.
- The appreciation of the consequences and impact of a particular distribution, especially if it deviates from or excludes “natural” beneficiaries, such as close family members or spouses.
- Clarification of concerns about potential beneficiaries who are excluded from the will or bequeathed lower amounts than might have been expected—that is, ruling out the presence of a specific delusion or overvalued idea that influences the distribution.
- Evidence of the presence of a specific neurologic or mental disorder that may affect cognition, judgment, or impulse control.
- Evidence of behavioral disturbances or psychiatric symptoms at the time of the execution of a will, for example, behavioral and psychological symptoms of dementia such as agitation, impulsiveness, disinhibition, aggression, hallucination, and delusions.
- The emotional/psychological milieu in which the testator lives, with specific reference to conflicts or tensions within the family, documenting the complexity and conflictual level of situation-specific factors.
- The testator’s understanding and appreciation of any conflicts or tensions in his or her environment.
- Evidence of a pathological or dependent relationship with a formal or informal caregiver, such as a younger woman who offers comfort and reassurance or plants seeds of suspiciousness toward family or friends.
- Evidence of inconsistency in expressed wishes or an inability to communicate a clear, consistent wish with respect to the distribution of assets; for example, frequent will changes are sometimes made in a desperate attempt to garner care, support, or comfort at a time when the testator feels increasingly vulnerable or threatened.
- Any of the indications of undue influence.
Specific questions posed to the testator may help in elucidating and probing the relationship between task-specific and situation-specific factors:
- Can you tell me the reason(s) that you decided to make changes in your will?
- Why did you decide to divide the estate in this particular fashion?
- Do you understand how individual A might feel, having been excluded from the will or having been given a significantly less amount than previously expected or promised?
- Do you understand the economic implications for individual B of this particular distribution in your will?
- Can you tell me about the important relationships in your family and others close to you?
- Can you describe the nature of any family or personal disputes or tensions that may have influenced your distribution of assets?
When a retrospective assessment is being conducted, assiduous review of medical records, examinations for discovery, and selective interviews of informants are needed to cast light on these issues.
Another excellent resource for those brave souls willing to delve into the murky waters of a testamentary-capacity lawsuit is a piece in the Journal of the American Academy of Psychiatry and the Law entitled Common Pitfalls in the Evaluation of Testamentary Capacity by Harvard Medical School Professor of Psychiatry Thomas G. Gutheil, MD.
Credit goes to Pennsylvania trusts and estates lawyer and expert witness Patti S. Spencer for bringing the linked-to articles to my attention in this post on her Pennsylvania Fiduciary Litigation Blog.