Challenging the Dubious Will
Regarding Testimentary Capacity, Mental Competence and Undue Influence
After several decades working as a forensic psychiatrist in the field of estate planning I have come to find alterations in trust documents or wills undertaken in a hospital or residential care home to be highly suspect. Questions along the lines of those given below should develop deposition testimony that can substantially undermine support for the new documents and set the stage for a restoration of their predecessors.
The scenario is all too common. A year or so before his death the testator acquires a new caregiver or perhaps a new housekeeper or a new “best friend”—we’ll call her the beneficiary-to-be (BTB). The BTB sweeps in and efficaciously takes care of both the testator and his home. She keeps house, cooks, shops, drives him to his doctors’ appointments (he has long since lost the ability to drive himself), pays the bills, filters the mail and screens his phone calls. One day she drives him to the office of an attorney she has retained on his behalf for the purpose of drafting a new will which effectively disinherits previous beneficiaries in favor of the BTB.
Some weeks later the BTB and the testator or “decedent- to-be” (DTB) return to the attorney’s office. While the BTB waits discreetly outside, the attorney goes over the new will with the testator, asks if he understands what he just heard, and gains his assent. When, inevitably, shortly after the testator’s death, the will is challenged, the BTB, attorney and possibly the testator’s unsuspecting physician issue affidavits stating that they saw no signs whatever of cognitive impairment (“He always seemed pretty sharp to me.”). No lawyer is likely to affirm that he drew up a will for a manifestly incompetent client; the decedent’s physician was doubtless focused largely on the testator’s diabetes, heart disease or, decubitus ulcers—not his neuro-psychological status.
The following deposition questions for the decedent’s attorney and physician should aid substantially in bringing the truth to light. (The opinion of the beneficiary-to-be [BTB], hardly a disinterested observer, is not likely to carry much weight and probably not much worth the attorney’s time.)
Deposition Questions for the Decedent’s Attorney
Who first contacted you regarding this matter?
How long had you known the testator prior to assisting in the preparation of this new will?
How long had you known the BTB (Beneficiary-To-Be)?
What was the nature of your prior contacts?
What procedure do you follow to determine whether an elderly, debilitated client is competent and resistant to undue in uence?
Do you use this approach consistently and systematically with each and every such client or do you just improvise as you go along?
What procedure did you utilize in this case?
Kindly give me each and every question you put to this gentleman to assess competence or possible susceptibility to undue infuence.
How do you tell when a client who appears socially intact and can give adequate answers to simple, everyday questions actually has the mental capacity to understand complex abstractions, basic estate law, financial issues, and so on?
In most cases of dementia, what is the last thing to go? (Correct answer: Usually social demeanor. That is, until loss of cognitive functions are fairly advanced, the demented in- dividual will appear superficially like his or her old self. It may not be until after several minutes of conversation that gross losses of intellectual function, memory, etc., are apparent.)
You stated that the decedent was able to carry on a cogent casual conversation; how were you able to tell that this essentially superfcial social exchange accurately reflected his underlying cognitive integrity?
You say that you read back to the testator each and every paragraph of the will you had prepared and asked in turn if he understood them; when he said that he did, how did you check it out? Did you, for example, ask him to repeat back to you in his own words his understanding of what he had just heard? If you simply took his assertion that he understood at face value, how would you know whether or not this is true?
Deposition Questions for Decedent’s Treating Physician
Doctor, what is a mental status assessment?
Did you perform such an assessment on the decedent or was your examination directed primarily at his physical ailments?
When you do physical examinations, do you not follow a standardized procedure with each and every patient?
Why is doing so good medical practice?
Did you follow a similar standardized protocol in assessing the decedent’s cognitive abilities?
Can you show me where in the medical chart you put your ndings?
Did you perform any psychometric or neuropsychological tests?
What is the purpose of such tests?
Is it not possible that a cognitively failing individual might well retain his basic personality structure and ability to interact normally in superficial social situations, yet suffer profound cognitive defects?
Was there any reason for you to try to search out such defects in the decedent?
If you didn’t go looking for them how do you know whether or not they were there?
In general terms, do you know what psychologists and psychiatrists do to assess a patient’s cognitive functions?
Have you a rough idea how long such an assessment takes?
How much time did you spend on assessing the decedent’s executive functions? What questions did you put to him to probe their integrity?
When you gave the decedent instructions would you then ask him whether or not he understood? If he said yes, would you have him repeat back in his own words those instruc- tions to be sure that he really did?
Since none of us like to appear ignorant and I presume that would include your patient, would you agree that he might assure you that he understood everything you said when in fact he did not?
How much time did you spend with the decedent in that last visit—just prior to his signing a new will?
How much of that time was devoted to assessing his mental capacity?
Roughly what percentage of individuals in the decedent’s age group suffer significant dementia?
Would that dementia necessarily be apparent to the casual observer?
Would it necessarily be apparent to a physician whose focus is primarily on the patient’s blood pressure or blood chemistries or decubitus ulcers?
Were these not your principal focus at the time of that last examination?
It is with sincere hope that the above question guide assists in the clarity and justice sought.