Do You Know What Day It Is? Understanding Testamentary Capacity

It is typical when clients meet or speak with me for the first time about a dispute involving a will or trust in Massachusetts that they bring up an issue concerning the mental capacity of the person who made or created the will or trust at issue.    It is, of course, natural for clients to raise that issue,  and it’s something we as probate attorneys want to know about as well.   But the answers to those questions are not as easy to grasp as one might think.

The law presumes that people understand the consequences of their actions.   So, for example,  if someone claiming that a will is void based on the maker’s lack of capacity presents no evidence concerning the person’s capacity, then the court assumes the person was of sound mind when he/she made the will.    That presumption goes away, however,  when “there is some evidence of lack of testamentary capacity”.   At that point the legal burden shifts to the person offering the will for probate to prove that the testator (person making the will) was “sound mind and testamentary capacity” when the will or trust was executed.    The burden is met by showing that at the time of execution of the will or trust,  the testator “was able to understand…in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance.”    More importantly, however,  it requires “freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property.”

Sounds confusing and complicated?  It is.

Consider how this impacts a very common medical condition”  Alzheimer’s Disease.     People often presume that someone who has Alzheimer’s simply is not capable of signing a will or trust and knowing the consequences of their actions.  In a recent decision, however,  the Massachusetts Appeals Court noted that “a diagnosis of Alzheimer’s disease in and of itself does not compel a conclusion that a testator lacks capacity to execute a will.”   But the court went on to state that “[t]he diagnosis carries more weight…when the cognitive deficits associated with Alzheimer’s disease manifest themselves in the loss of abilities that bear on testamentary capacity.”   In that case, known as Paine v. Sullivan,(decided in July, 2011),  the evidence showed that some three years before he executed the will in question,  the testator was unaware that he was unsteady on his feet, he required supervision when his wife was not at home, and he had lost the ability to handle the family’s finances,  a task he had always performed.     An additional factor that was deemed relevant in Paine was that the attorney who prepared the will was unable to provide any evidence as to the testator’s capacity on the day he signed the will.  The attorney had not seen his client in several years and only spoke with him by phone;  he did know of the Alzheimer’s diagnosis and was not present when the will was executed (the signing occurred at a bank and was witnessed by several employees,  none of which could offer any testimony as to the testator’s capacity).    The court ultimately reversed the Probate Court and declared the will invalid.

What are the lessons to be learned from cases such as Paine?    There are some certainties, or near certainties, that can be taken from it:

1.   Capacity is a complex question, and one which is best addressed by an expert witness such as a neuropsychologist who can review the deceased’s medical records and offer a reasoned opinion as to whether he/she had the capacity to understand the consequences of their actions.

2.   Courts will look for certain telltale signs of lack of capacity and give them great weight in making the determination concerning capacity.    Those of us who have spent time with patients suffering from neuropsychological disorders understand what those signs are:    disorientation to time and place,    a need for 24/7 supervision,  lack of recognition of loved ones, and an inability to attend to basic life needs (e.g. personal hygiene).

3.   Courts will give some weight to the involvement of an attorney in the will signing process,   provided that the attorney has made his/her own assessment of the testator’s capacity, is present when the testator signs the will or trust,  and has explained the terms of the will/trust and can attest that the testator understood its basic terms.  However,  the mere presence of an attorney who goes through these procedures will not be dispositive of the question.

Attorney Alan Fanger is a Massachusetts probate attorney concentrating in will contests and other probate matters. Alan serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, and Middlesex County, and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.

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