Testamentary Capacity

Jonathan Raub; J. Richard Ciccone

The Presence of Mental Illness Does Not Preclude Testamentary Capacity

At issue in In the Matter of the Estate of Berg, 783 N.W.2d 831 (S.D. 2010), is whether a trial court erred in its finding that Mr. Berg, who had a history of schizophrenia, had the capacity to write a will and was not subject to undue influence in executing such.

Facts of the Case

After being discharged from the U. S. Army in 1943, Fred Berg had visual and auditory hallucinations, which were controlled by electroconvulsive therapy (ECT) for several years. He began refusing ECT and, in 1950, underwent a bilateral prefrontal lobotomy. After his lobotomy, Mr. Berg was able to engage in social and recreational activities for the remainder of his life.

In 1967, the Veterans Administration found that Mr. Berg lacked the capacity to contract or to manage his own affairs, including the disbursement of funds, and was incompetent “for the limited purposes of insurance and disbursement of benefits” (Berg, p 834). A court order appointed American National Bank and Trust Company as a guardian to dispense benefits.

In 1991, Mr. Berg was visited by his nephew Roger Berg (Roger), and a friendship began that lasted until Mr. Berg's death. Roger called his uncle regularly, and they saw each other one to two times per year for the next 16 years. The director of social services at Mr. Berg's nursing home noted that Mr. Berg would “light up” when Roger was expected for a visit and that he spoke about these visits with great enthusiasm. She also noted that very few other family members visited. Mr. Berg and Roger took several trips together. In 1995, Roger was given Mr. Berg's power of attorney.

In 1996, Roger became aware that Mr. Berg had $500,000 in the bank but did not tell the rest of Mr. Berg's family. In 1997, upon Roger's recommendation, Mr. Berg met with an attorney to draft a will. While Roger waited outside, Mr. Berg estimated his assets at $100,000 and designated Roger and Mr. Berg's two sisters as objects of his bounty. Mr. Berg received a draft of the will. In 1998, Mr. Berg was taken to his lawyer's office by a staff worker from the nursing home to sign the will.

The director of social services at the nursing home reported that Mr. Berg claimed that the late actor Fred MacMurray was his father. She also reported that Mr. Berg was very intelligent and typically oriented in all three spheres. The activities director at Mr. Berg's nursing home noted that he enjoyed playing two-card bingo and participating in discussion groups on current topics. A staff member at the nursing home administered a Mini-Mental State Examination to screen for cognitive impairment the day after Mr. Berg signed his will, and he scored 28 of a possible 30.

Mr. Berg died on November 5, 2006. On April 10, 2007, Mr. Berg's brother's daughter, Carol Opdahl, filed a petition asserting that Mr. Berg lacked the capacity to execute his will. She also alleged undue influence by Roger and sought an equal distribution of Mr. Berg's estate. During the trial, Ms. Opdahl called on Dr. Manlove, a forensic psychiatrist, to testify on her behalf. Dr. Manlove opined that, because of his schizophrenia, Mr. Berg was more susceptible to undue influence than are those with no mental illness. He also opined that the record contained evidence that Mr. Berg was “probably” thought disordered and psychotic on the day that the will was made, given his static delusion that Fred MacMurray was his father. As a basis for his opinion, Dr. Manlove read medical records and read deposition transcripts given by Mr. Berg's nursing home personnel and his attorney. Dr. Manlove did not interview Mr. Berg's treating doctors or nursing staff personnel. Ms. Opdahl testified that she had known that, since 1954, Mr. Berg had been of “unsound mind” and had been “essentially a human robot.” Ms. Opdahl had last visited Fred Berg in 1994, 12 years before his death.

Ruling and Reasoning

The trial court concluded that Mr. Berg's caretakers and companions over the last several years of his life knew him best and were more credible and persuasive regarding Mr. Berg's competency to execute his will than was Ms. Opdahl's expert witness. The trial court gave little credence to Ms. Opdahl's testimony, as it was considered “mainly hearsay-upon-hearsay, conjecture, and speculation” (Berg, p 840).

The trial court concluded that Mr. Berg had testamentary capacity at the time his will was drafted and executed. It found that Mr. Berg was aware that he had a “sizeable” estate, that he knew to whom he wanted his money to go, and that there was no evidence of undue influence by Roger. The court also took note of Roger's decision to “formally disclaim before the will contest was filed” (Berg, p 841). Roger had renounced the inheritance, and it went to Mr. Berg's lone surviving sister.

Ms. Opdahl appealed this decision to the South Dakota Supreme Court asserting that the trial court erred in its conclusion that Mr. Berg had testamentary capacity and that Roger did not exert undue influence. The court found that the existence of undue influence was a question of fact for the trial court that had already been answered. The court concluded that Mr. Berg's static delusion that Fred MacMurray was his father “did not touch” his testamentary capacity, Mr. MacMurray was not named as an object of his bounty, and therefore the delusion did not materially affect the terms and provisions of the will. The court went on to say that “for purposes of testamentary capacity, we do not require the soundness of mind enjoyed by those in perfect health,” (Berg, p 842) and “testamentary capacity is not determined by any single moment in time, but must be considered as to the condition of the testator's mind a reasonable length of time before and after the will is executed” (Berg, p 842).

Discussion

Testamentary capacity refers to an individual's capacity to make a will and the testator enjoys the presumption of competence until proven otherwise. To have testamentary capacity, testators must know a reasonable approximation of the overall worth of their estate and which individuals are the “natural objects” of their bounty, usually blood relatives. In addition, the will must be executed in the absence of undue external influence. In a will that is contested, the burden of proof in most jurisdictions is “clear and convincing” and rests with the party alleging deficiency.

At issue in this case, as in all competencies, is whether the signs and symptoms of a mental disorder interfered with the abilities needed to competently perform a specific task or function, making a will. The criteria for possessing testamentary capacity are conceived of as lying at a low level, perhaps the lowest level, of any legal demands on an individual.

As testamentary capacity frequently arises in cases of organic brain dysfunction (e.g. dementia and delirium), the testator may possess capacity during a lucid interval; incompetence (intestacy in this case) refers to a current condition and does not necessarily imply an enduring status. In the case of an individual with a chronic mental illness, that individual may possess testamentary capacity so long as the signs and symptoms of that mental illness do not materially affect the abilities required for such capacity.

Forensic psychiatrists conducting an examination on testamentary capacity are advised to be aware that collateral information in the postmortem examination may be biased, given the often heated nature of contested wills. It is also advisable to consider testamentary capacity as a functional ability that may or may not be influenced by a given diagnosis or diagnostic finding. As with other competencies (although with a lower standard), it is the particular manifestation of an illness that is relevant and not the illness itself. If a testamentary capacity evaluation is requested at the time that an individual is executing a will, it is useful to make a video recording of the evaluation. A video recording can present compelling information that may be relevant to a court's effort in the future to determine if the person possessed testamentary capacity at the time of writing the will.