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Psychologists’ Roles in Cases
Involving Disputed Wills, By Brett Trowbridge, Ph.D., J.D. This article supported by The Trowbridge Foundation A shorter version of
this article was originally published in
INTRODUCTION The elderly, the disabled, and the seriously ill can at times be persuaded or tricked into entering into lawsuits, contracts or marriages by those wishing to obtain thereby large sums of money. This commonly occurs when the elderly or infirm person is terminally ill, as in cases where wills are altered shortly before a person’s death. Sometimes such people sign powers of attorney or sign deeds, or allow others to have access to checking accounts. All of these cases are treated the same at law, as those who feel they have been wronged (usually those who thought they were to inherit the disputed money) can commence a lawsuit in each type of case claiming fraud, undue influence, and/or lack of capacity on the part of the elderly or infirm person. Psychologists usually do not concern themselves with claims of fraud, but often do become involved with cases in which lack of capacity or undue influence have been alleged. Often the plaintiffs in these cases do not even know about the disputed contracts, deeds, marriages, powers of attorney, or wills until after the death of the elderly or infirm person, at which time they discover they are not going to receive the amount they had expected. After death the deceased’s personal representative publishes a notice to creditors to file all claims against the estate under RCW 11.40.020, serves interested parties personally or by mail order RCW 11.28.237 and admits the will he determines is the valid will to probate. In order to assure a timely resolution of the will, those who are to receive monies under the will are sent notice. They are given only four months from the time that the will is admitted to probate to file any claim of fraud, undue influence, or lack of capacity. RCW 11.24.020; In re Estate of Barr, 76 Wa. 2d 59 (1969); In re Estate of Young, 23 Wa.App 761 (1979);In re Estate of Toth, 138 Wa.2d 650 (1999). This four month time period is strictly adhered to, even in cases in which there is substantial proof of wrongdoing, such as evidence that a women in her mid-20’s had married an ill man in his seventies solely to obtain his estate, and that the marriage was never consummated. Her former father-in-law testified through a deposition that she was a “gypsy female” who routinely sought “sugar daddies” to prey on; and that she had bragged that she had “landed a whale” when she got involved with the elderly man. Nonetheless, the plaintiff’s suit was barred because of failure to file it within the four month time period. In re Estate of Clarence Peterson, No 24091-2-II (Wash. App. Div.2, 2000) VARIOUS COMPETENCY STANDARDS The law presumes that a person is competent (or
has “capacity”) until contrary proof is offered Vo v. Pham 81 Wa.
App. 781 (1996). Mental competency is a factual issue that must be determined
at the time of the challenged transaction, and the challenging party must
overcome the presumption of competency with clear, cogent and convincing evidence.
Page v Prudential Life Insurance Company of America,12 Wa. 2d. 101
(1942). In discussing mental competency to sign contracts the courts will
look to whether the signing party “possessed sufficient mind or reason to
enable him to comprehend the nature, terms, and effect of the contract in
issue.” Page v. Prudential Life Insurance Company of TESTAMENTARY CAPACITY By statute, a will may be made by any adult of “sound mind.” RCW 11.12.010. The law presumes the validity of a rational will. “Where a will, rational on its face, is shown to have been executed in legal form, the law presumes that the testator has testamentary capacity (competency) and that the will speaks his wishes”. In re Estate of Boittger, 14 Wa. 2d 676 (1942). The test for testamentary capacity was stated by the Washington Supreme Court in re Estate of Bottger, supra, “[A] person is possessed of testamentary capacity if at the time he assumes to execute a will he has sufficient mind and memory to understand the transaction in which he is then engaged, to comprehend generally the nature and extent of the property which constitutes his estate and of which he is contemplating disposition, and to recollect the objects of his bounty.” This test seems to imply that the testator must have generally understood the nature and effect of his property, his relationship to those who may naturally claim benefit from the property they leave, and the practical effect of his will. Testators do not need to know every detail concerning their property, and mere forgetfulness is not equivalent to lack of capacity. The presence of a mental illness is not equivalent to lack of capacity, but a delusional belief (one that can be accounted for only by a mental illness) about a possible beneficiary may constitute incapacity if it is more than mere prejudice or enmity towards the person. Foote, W. “The Psychologist Assessment of Testamentary Capacity and Undue Influence”, paper presented at an American Academy of Forensic Psychology conference, in San Diego, March, 1999. Sometimes psychologists are called upon to evaluate a person just before the execution of a will, so that if the psychologist finds the testator has testamentary capacity any subsequent challenges to the will would be less likely to succeed. In many of these cases the testator may be substantially disinheriting someone, and if is feared that there may be a challenge to the will after the testator’s death. In such cases it may be advisable to videotape or audiotape an interview with the testator during which the testator recites generally what his estate consists of, and states whom he wants to receive his assets and whom he wishes to dis-inherit. In such cases the psychologist can employ standard testing for cognitive functioning such as intelligence and memory tests, and can interview the testator as to his intentions. However, in the more usual case the psychologist is not contacted until after the death of the testator, and after a will contest has begun. In such cases it is, of course, not possible to do a formal evaluation. Instead, the psychologist must reconstruct what the testator’s mental capacity had been at the time of the making of the will by using collateral sources, such as medical records, testimony of the attesting witnesses who were present when the testator signed the will, testimony of lay witnesses, testimony of the lawyer(s) involved in preparing the will, and other evidence of the testator’s capacity during the time period in question, such as contemporaneous business records, etc. With respect to medical testimony, it has been held that special consideration should be given to the opinion of the attending physician (or psychologist) during the time period in question. In re Estate of Reilly, 78 Wa 2d. 623 (1970); see M. Reutlinger and W. Oltman, Washington Law of Wills and Intestate Succession, 71-73 (1985). As mentioned above, in order to overcome a will, the evidence presented by the contesters must be “clear, cogent, and, convincing”. In re Estate of Reilly, 78 Wa. 2d 623 (1970). The clinician should attempt to reconstruct the testator’s relationships with significant others at the time of the making of the will, in order to determine if he understood the “objects of his bounty”. Interviews with those people, including those who are contesting the will, will be important in that regard. Correspondence between the testators and these people may also be of interest. If interviews with the relevant parties show that the relationship(s) with the person(s) who ended up with little or nothing were strong, whereas the relationship(s) with the person(s) who ended up with the most of the assets were weak, the testator’s knowledge of the “objects of his bounty” may be called into question. UNDUE INFLUENCE Obviously any number of mental conditions could call into question the testator’s capacity (competency), but the most common cases involve some sort of dementia (severe memory impairment due to a medical condition), such as Alzheimer’s disease, or vascular dementia. Also frequently encountered in these cases are claims that the testator was suffering from a head injury, or was psychotic, or was severely depressed. Since most elderly people are taking various drugs, it is essential for the clinician to determine what drugs were being taken at the time, and the potential interactions and side effects of these drugs. It may be necessary to consult with physicians and/or psychopharmacologists for assistance. Sometimes the attorney who draws up the will at the testator’s request may conclude that the testator is not competent. The best practice at that point is to have a guardian or guardian ad litem appointed. However, the attorney does not have a fiduciary duty to tell potential beneficiaries if he feels the testator is not competent. See Morgan v. Roller, 58 Wa. App. 778 (1990). “Undue influence” is closely
related to the issue of testamentary capacity. Just as with testamentary
capacity, the burden of proof is on the person(s) contesting the will to show
there was undue influence by “clear, cogent and convincing” evidence. In
re Estate of Smith, 68 Wa. 2d 145 (1966). The test for undue influence
was set forth in Dean v
Other factors which bear on the issue or whether undue influence was exerted include
“The weight of any such facts will, of course vary according to the circumstances of a particular case. Any one of them may, and variously should, appeal to the vigilance of the court and cause it to proceed with caution and carefully scrutinize the evidence offered to establish the will.” In re Estate of Fritz, N0 2-1943-3-II (Div. II Wa. Court of Appeals, 1998) Cases involving allegations
of lack of testamentary capacity very frequently also involve allegations
of undue influence, and with both types of allegations the contester(s) of
the will must show “clear, cogent and convincing” evidence that the will was
invalid. If enough evidence is adduced the court will find that a “presumption”
of invalidity has been raised, at which time the burden shifts to the proponent(s)
of the will to show by rebuttal evidence that the will was valid. If this
evidence does not “balance the scales and restore equilibrium of evidence
touching the validity of the will,” the will will be determined to have been
invalid, and the next most recent will will be used instead. Dean v Obviously the clinician must evaluate the testator’s mental condition at the time of his signing of the will by interviewing medical witnesses, attesting witnesses, and the purported beneficiaries, and reviewing medical and business records, just as with testamentary capacity cases, as discussed above. The clinician also needs to assess to what degree the testator might have been overly dependent on the person(s) accused of undue influence. This dependency could be due to psychological or physical causes (e.g. testator is dependent on the person accused of undue influence because that person provides food, transportation, medicine, etc.) The fact that a significant period of time expired between the date of the will and death of the testator may be important, but is not necessarily determinative, particularly if the alleged “undue influence” continued until death. See In re Estate of Dand, 41 Wa. 2d 158 (1952), in which there was a period of seven years between the date of the will and the date of the death. FRAUD Many will contests also involve allegations of “fraud”, when it is alleged that the person accused of undue influence actually made mis-representations to the testator, telling him that his significant others did not want to visit (when in fact they did), or did not want to inherit anything. The elements of fraud are 1. representation of an existing fact, 2.materiality of the representation, 3. falsity of the representation, 4. knowledge of the falsity or reckless disregard as to its truth, 5. intent to induce reliance on the representation, 6. ignorance of the falsity, 7. reliance on the truth of the misrepresentation, 8. justifiable reliance, and 9. damages. Farrell v. Scope, 67 Wa. 2d 957(1966) Other possible grounds for will contests would be duress, mistake, or revocation. EXAMPLES A recent Washington Supreme Court case is interesting, as it addresses both a disputed marriage and a disputed will. In Estate of Lint, 135 Wa. 2d 518 (1998) the testator, Mrs. Murphy, an elderly woman, met Mr. Lint, who was 18 years her junior, at a charity function, after which they began dating, although Mr. Lint continued seeing other women including a “longtime girlfriend” up until September of 1995. Mrs. Murphy had previously been married for 30 years until the death of her husband, and she had indicated to friends that she had no reason to remarry. In 1993 she executed a will with the help of an attorney, with the inheritance to go to certain named relatives. In April of 1995 she was diagnosed with terminal lung cancer, and a portion of her lung was removed. In July of 1995 she was again hospitalized when it was discovered she had a metastasized lesion on her brain; her treating physician found her to be “confused”, a speech pathologist noted she had “moderate-severe aphasia…affecting comprehension”, an a neuropsychologist observed that she showed signs at that time of “verbal and motoric perseveration, stereotyped phrases and inability to pick objects from an array”, with a high degree of receptive aphasia. After her release from the hospital Mr. Lint moved into the house with Mrs. Murphy, and dismissed her housekeeper of 15 years, hiring two of his own employees to assist in caring for her. He then, according to the trial court, began to “systematically and persistently” isolate her from all of her friends and family. A hospice nurse was told by Mr. Lint that Mrs. Murphy’s family was trying to have her “declared incompetent and put in a hospital or nursing home”. He instructed the nurse not to put anything in the log book that would suggest Mrs. Murphy was incompetent. In September of 1995 her physician’s notes showed “neurologic deterioration over the last two or three days”, and a hospice team member found her conversation consisted of “word salad”. Mr. Lint claimed to have a health care power of attorney for Mrs. Murphy, and asked that her family not be made aware of her deteriorating condition, but he apparently had no such power of attorney, and when he tried to have Mrs. Murphy sign one, the notary who came to the house to witness the document refused to notarize it because Mrs. Murphy did not appear to “understand what was going on”. In early October Mrs. Murphy attempted to brush her teeth with cleaning fluid, attempted to take suppositories orally, was lighting matches and yelling “fire”, and was engaging in other bizarre behavior. On October 11,1995, Mr. Lint took Mrs. Murphy to Las Vegas, where they proceeded to the “We’ve Only Just Begin” wedding chapel. They did not have a marriage license, but nonetheless a videotape was made of a “mock wedding ceremony” drug which Mrs. Murphy could not stand without aid. She was unable to repeat words that were spoken to her. The couple then took a taxicab to the courthouse and obtained a marriage license, after which another “ceremony” was performed. Although the reverend testified that marriage vows were recited, the trial court found his testimony “not convincing”. On October 12,1995, Mr. Lint and Mrs. Murphy traveled to San Diego, where two doctors stated Mrs. Murphy was “clearly aphasic and is unable to both understand commands and to express herself”. In late October and early November she underwent a series of brain irradiations as treatment for newly discovered brain tumors. When the attorney who had drawn up her 1993 will learned of the wedding in Las Vegas, he became concerned, and contacted Mrs. Murphy to tell her that Mr. Lint would take a 75 percent share of her estate as a omitted spouse, as he was not mentioned in the 1993 will. Meanwhile Mr. Lint and Mrs. Murphy met with an attorney chosen by Mr. Lint, and that attorney drafted a letter dismissing the other attorney. Mrs. Murphy signed that letter on November 7, and on November 14 she signed a new will prepared by the new attorney under which Mr. Lint was made the primary beneficiary of her large estate; much smaller sums were provided for those who would have benefited under the 1993 will. After that announcements of the wedding were sent to Mrs. Murphy’s friends and family. At the urging of Mrs. Murphy’s family, the attorney from the 1993 will instituted a guardianship proceeding. A guardian ad litem was appointed on December 14,1995. Mrs. Murphy died on December 22,1995, at the age of 64, and the November 14 will was admitted to probate. Her family filed a petition contesting the will and her marriage to Mr. Lint. Several medical and psychological experts testified at the lengthy trial. At the end of the trial the trial court found that Mrs. Murphy had had testamentary capacity at the time she signed the 1995 will, but concluded that that will was procured by fraud and undue influence, and that her marriage was void, due in part, to her incompetence at the time of the marriage. The court found Mrs. Murphy had remained under the undue influence of Mr. Lint until her death. Mr. Lint appealed, complaining that the trial judge had a “degree of prejudice against an older woman having a meaningful relationship with a younger man”. The trial court had found that when Mr. Lint had professed his love to Mrs. Murphy that had been an act of fraud, but the Supreme Court over-ruled this finding, stating that a person’s statement of love for another cannot be held to be fraudulent since it is subjective, and thus it is unprovable whether such love existed or not. However, the Supreme Court did uphold the trial court’s finding that Mr. Lint had falsely and fraudulently represented to Mrs. Murphy that her family wanted to put her in a home, doing so in order to get his hands on her estate. The Supreme Court also upheld the trial court’s finding that Mr. Lint had exerted undue influence on Mrs. Murphy, stating, “although the appellant did present evidence in an effort to rebut the so-called suspicion raising factors, we are satisfied that the trial court’s findings constitute clear, cogent and convincing evidence of undue influence”. The Supreme Court also upheld the trial court’s finding that the marriage had been invalid, stating, “Courts of this state should have and do have the inherent power to declare the alleged marriage void and of no force or effect”. In re Estate of Kessler, 95 Wa. App. 358 (1999) is a recent case which is instructive because the testatrix’s testamentary capacity was upheld despite significant evidence of incapacity. In that case the testatrix, Mrs. Kessler, died at the age of 99, on May 24,1996. She had previously executed four different wills (in 1987,1990,1993 and 1995), in each of which she had made substantial bequests to Frances and Thomas Trimm, her longtime friends. In late 1995 Frances Trimm found Mrs. Kessler on the floor of her residence, and took her to a doctor, who advised it was no longer safe for her to live alone. However, Mrs. Kessler was adamant she did not want to go to a nursing home. Since the Trimms were unable to provide 24 hour care, the doctor contacted Adult Protective Services. Two other friends of Mrs. Kessler contacted Mrs. Kessler’s great-nephew, Brian Davis, who lived in Idaho with his wife, expressing concern about the way in which the Trimms were handling Mrs. Kessler’s affairs. Mr. Davis arrived unannounced on December 16,1995, and two days later his wife, Tami Davis, contacted Mrs. Kessler’s attorney and told him that Mrs. Kessler wanted to revoke the power of attorney she had previously given to the Trimms. She told the attorney that the Trimms were trying to discharge Mrs. Kessler’s longtime accountant, and were trying to sell some of her real estate. There allegations were apparently untrue. When the attorney went to Mrs. Kessler’s home to meet with her he could not determine whether she recognized him, or whether she was capable of executing a testamentary instrument. On December 29,1995, Mr. Davis’s wife contacted another attorney, John Hertog, asking him to meet with Mrs. Kessler at her home the following day to discuss revoking the power of attorney. Mr. Hertog testified at trial that Mrs. Kessler told him that day Trimms had not done right by her and she no longer trusted them. On January 2,1996, Hertog again met with Mrs. Kessler so she could execute the documents he had drafted following the December 30 meeting. During that meeting Hertog asked Mrs. Kessler what the Trimms had done with her investments. She responded she had gotten “a notice on the TV” that they had taken her money and “done something with it”. Because Hertog felt Mrs. Kessler was unable to understand what would happen as a result of revoking the power of attorney, she did not execute the documents he had prepared. On January 4 the Davises filed a petition to establish a limited guardianship for Mrs. Kessler, and Julie Schisel was appointed guardianship ad litem. When Ms. Schisel met with Mrs. Kessler on January 11, Mrs. Kessler insisted she was living in Seattle and that her Renton home was closed up, even though their meeting took place in the Renton home where Ms. Kessler had lived for fifty years. Mrs. Kessler said because of her poor eyesight she could no longer read, and she relied on the Davises to read documents to her. When Ms. Schisel and Ms. Kessler met again the next day Ms. Kessler said that she owned the Bennett Apartments, and that the Bennett Grocery had been sold, but in fact the apartments had been sold fifteen years earlier, but Ms. Kessler did still own the grocery. On February 27, 1996, the court entered an order in the guardianship proceeding establishing a limited guardianship. As Mrs. Davis had told Ms. Schisel that she would contest Mrs. Kessler’s will unless it was changed, Ms. Schisel recommended the appointment of a professional guardian for the estate, and the court appointed Guardianship Services of Seattle. On March 22,1996, Mrs. Kessler signed a new will. The will signing was recorded an videotape, and the videotape showed significant confusion on Mrs. Kessler’s part about what was taking place. When asked by Mr. Hertog what her husband’s name had been, she gave the name of someone to whom she had never been married, and when asked to estimate the size of her estate she could only say, “Its worth quite a bit!” She also expressed confusion about her intentions towards the Trimms, stating at first that she did not wish to change the 1995 will, but later stating she did not wish to make any bequest to them. The new will eliminated all gifts to the Trimms, and named Mrs. Davis as a beneficiary although she had never been included in any of the previous wills. When Mrs. Kessler died nine weeks later, the March 22, 1996, will was admitted to probate, and the Trimms filed an action contesting the will, claiming lack of testamentary capacity, and undue influence by the Davises. After a two week trial the trial court elected not to invalidate the will, and awarded attorney’s fees to by paid to the estate by the Trimms. The Trimms appealed. On appeal Division I of the Washington State Court of Appeals upheld the trial court’s finding that Ms. Kessler had had testamentary capacity, stating that since Mrs. Kessler had been able to state that if she died her estate was large enough to cover all the bequests she had made, that was sufficient to establish that she was generally able to comprehend the nature and extent of her property at the time she made the 1996 will even though when she was asked to state what her estate consisted of she could only state, “It is worth quite a bit”. The Court of Appeals also upheld the trial court’s finding that the 1996 will had not been fraudulently obtained. The Court of Appeals found that Mrs. Kessler had made various comments to various people in which she said the Trimms had cheated her, but there was no proof to show that the Davises had planted these false ideas in her head. Furthermore, the Court of Appeals found that “the record does reflect that Laura Kessler was also genuinely grateful to Tami Davis for the care she provided during the last months of her life, especially because she believed it allowed her to avoid being put in a nursing home”. The Court of Appeals found that undue influence had not been exerted since the facts did not show “influence tantamount to force or fear”. The Court of Appeals did decide not to award attorney’s fees to either side. CONCLUSION Psychologist often become involved in cases involving disputed contracts, marriages, powers of attorney, or wills entered into by elderly, disabled, mentally infirm, or seriously ill people. Psychologists may become involved in these cases when the person’s capacity (competency) to execute such documents is called into question, or when “undue influence” is alleged. In such cases the psychologist often cannot actually evaluate the person involved, since they are frequently deceased before the issues of capacity of undue influence are raised. In such cases the psychologist should examine collateral sources, such as testimony of individuals who knew the person at that time, contemporaneous business records, testimony of attorneys involved, and testimony of witnesses to the disputed documents. Courts often decide such cases involving disputed documents by attempting to determine if the document was “rational,” and attempting to determine if those who would benefit from the disputed document had a close relationship with the person, and/or if they exerted “undue influence” over the person.
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