From a medical perspective, for a will to be valid the testator must have a certain level of mental capacity at the time the will is made. Lack of testamentary capacity is one of the few grounds on which a will can be contested. Contestants may seek to show that the testator was not of sound mind due to dementia, mental illness, the effects of medication, alcohol or illicit drugs, or some other reason. When a will is offered for probate, the burden is on the will proponent to prove that it was executed properly. However, in order for a will to be invalidated, the burden of proof shifts to the contestant.
Testamentary capacity
It’s rare for a will to be invalidated on the grounds of testamentary capacity, in large part because the mental capacity standard for making a will is relatively low – lower, in fact, than the standard for entering into a contract. At the time of execution, the individual must know that he or she is making a will and have a basic understanding of its terms. Testators must also understand the general nature, extent and value of their property as well as the relationship between themselves and their proposed heirs and other potential beneficiaries. They must also have sufficient memory and capacity to connect all of these elements together to form a coherent plan.
In the Estate of Mahaffey
In a recent decision, the Fourth Court of Appeals in San Antonio, Texas, reversed a lower court’s order in a matter involving competing wills that provides a window into what the issue of testamentary capacity involves.
Ava Mahaffey made a will on Oct. 25, 2016, in the presence of her long-time friend, Morgan Wayne Dale, and attorney Elizabeth Jesko, who drafted the will. Mahaffey made bequests to three of her sisters but excluded a fourth sister, Anna Crosswhite, and left the residual estate to her late husband’s great niece, Michele DeBillis. Mahaffey died nine days later of pancreatic cancer.
DeBillis sought to have the Oct. 25 will admitted to probate, but Crosswhite objected, claiming that Mahaffey lacked testamentary capacity to execute a valid will on that date. Crosswhite instead sought to admit an earlier will – which the same attorney had drafted and which Mahaffey had executed on Oct. 6, 2016 – and which left the residual estate to Crosswhite rather than the great niece.
DeBillis filed a motion for summary judgment, arguing that she had offered evidence to conclusively prove Mahaffey had testamentary capacity on Oct. 25. The court granted the motion and dismissed the case. But Crosswhite appealed, arguing she presented genuine issues of material fact, which should result in the motion being denied and the case proceeding to trial. The appeals court agreed with her and remanded the matter for further proceedings.
Evidence presented by DeBillis
Jesko testified that Mahaffey had contacted her on Oct. 24 and told her of her intent to redo her will and disinherit Crosswhite. When she arrived on Oct. 25, Jesko testified that she found Mahaffey alert and sitting in bed with a clipboard, pen and checkbook and opined that she appeared to be lucid, competent and under no duress. She said they thoroughly discussed the Oct. 6 and Oct. 25 wills and the impact the changes would have. Jesko said Mahaffey understood the nature of her property, including her home and bank accounts, and recounted her family history. Dale, the testator’s friend, confirmed that Mahaffey wanted to disinherit Crosswhite and further testified that throughout her illness, Mahaffey handled her business normally, including managing her own banking, and that on that date, she had all her mental faculties. The trial court was satisfied that DeBillis met her burden of proof and granted her motion for judgment.
Crosswhite raises valid questions
On appeal, the burden shifted to Crosswhite to present evidence sufficient to raise a genuine issue of material fact as to Mahaffey’s testamentary capacity. Crosswhite testified that as Mahaffey’s cancer progressed, she became more confused. On Oct. 24, she said, Mahaffey was in such pain that she sought emergency assistance for pain relief and reported to EMS that she had taken seven hydrocodone pills in eight hours and that her pain was still severe. Peterson Hospice prescribed Mahaffey morphine to ease her pain but, later in the evening, Mahaffey demanded that Crosswhite give her all the pills so that she could commit suicide. Crosswhite refused and called the police and the hospice for help. Mahaffey repeated her intent to end her life to Nurse Amy Ives, who came to the house. Mahaffey then ordered the nurse and Crosswhite out of her house and revoked her hospice care, which resulted in all the medication provided by the hospice to be removed from the house. Crosswhite testified that Mahaffey was confused and could not understand what was happening that night, while Dale testified that when Mahaffey revoked her hospice care, she was not thinking rationally because of the pain she was in. On Oct. 26, Mahaffey again requested emergency assistance for pain relief. A plan of care and treatment form signed by a physician and personnel from another hospice stated that Mahaffey experienced periods of confusion, fatigue and forgetfulness and was prone to poor judgment. The form also indicated that Mahaffey required assistance for all activities for daily living, except for feeding.
“Given evidence of Mahaffey’s declining condition, periods of confusion, and worsening memory, there is a genuine issue of material fact as to whether Mahaffey possessed sufficient mental ability to understand the effect of making the Oct. 25 will,” the Court of Appeals said. “Because there is some evidence indicating Mahaffey could have lacked testamentary capacity on the day preceding and the day after the will’s execution, we conclude Crosswhite’s summary judgment evidence raised genuine issues of material fact about whether Mahaffey possessed testamentary capacity at the time the October 25th will was executed.”
Proving testamentary capacity
The Court of Appeals did not rule on whether Mahaffey had testamentary capacity; it merely decided there was enough evidence to raise a factual question that should be determined at trial. A testator’s mental capacity can be proven with medical records and the testimony of treating physicians, psychiatrists, nurses and others who observed the testator, including the attorney who drafted the will. Claims can generally be supported by evidence of state of mind at the time of the will’s execution as well as during a reasonable time before and afterward.
2 Responses
After several days of trial and conflicting testimony between the Testator’s sons on one side of the Courtroom, and a daughter on the other side of the Courtroom, fighting over whether the last Will, signed just several days before the Testator’s death and most generous to the daughter, was signed while the Testator was mentally competent, as opposed to an earlier Will signed several years before the Testator’s death. The earlier Will was, of course, most generous to the sons. The dispute suddenly came to a halt when the sons presented a witness who was a psychiatrist who presented an MRI of the Testator’s brain taken on or about the time of the signing of the second and last Will. The testator’s brain looked so perforated that, as the psychiatrist testified, it “looked like a pack of rats had attacked the Testators brain”. While he testified, the witness psychiatrist held up the MRI film so that all could see the brain image, with multiple black spots throughout. Judgment for the sons. The earlier Will was deemed controlling.
A picture is worth a thousand words, and in this case it was probably worth hundreds of thousands of dollars. Many attorneys swear by the adage of “give the jury something — ANYTHING — they can see!” In this case, the visible “spots” on the MRI swayed the jury even though as laypeople they would have little insight into the clinical significance of the findings. The case also illustrates the importance of exploring every avenue, right down to the actual imaging, to make or break the argument of testamentary capacity. Thank you, Edgar, for your first-hand insight into the never-ending twists and turns of these cases. [Dr. Burton Bentley II; CEO, Elite Medical Experts]