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Testamentary Capacity: Lack of Mental Capacity or Presence of “Insane Delusions”

  1. Presumption of Capacity
  2. Lack of Capacity: Generally
  3. Organically Impaired Testators
  4. Functionally Impaired Testators — The Schizophrenic, Paranoid, Manic, or Depressed Testator
  5. The Insane Delusion Rule
  6. Burden of Proof of Lack of Capacity
  7. Summary

A.  Presumption of Capacity

“[W]here a Will, rational on its face, is shown to have been executed in legal form, the law presumes that the testator had testamentary capacity and that the Will speaks his wishes. If the will has been probated and is thereafter contested, the burden of proving its illegality is, by statute (now, RCW 11.24.010), imposed upon the person contesting such probation, and … that burden can be met only by producing clear, cogent, and convincing evidence of the invalidity of the Will.”  Estate of Bottger, 14 Wn.2d 676, 685-86 (1942); Estate of Nelson, 85 Wn.2d 602 (1975).

B.  Lack of Capacity: Generally

Next to undue influence, lack of capacity is the second most common ground for setting aside a Will.  The legal standard for testamentary capacity is that a testator has testamentary capacity if, at the time of the making of a Will, he/she has sufficient mind and memory::

  • To understand the transaction in which he is then engaged,
  • To comprehend generally the nature and extent of his property which constitutes his estate and which he is contemplating disposing, and
  • To recollect the objects of his bounty. …

Estate of Bottger, 14 Wn.2d 676, 685 (1942).  In other words, the testator:

  • Has the capacity to make a rational plan, and understands that he/she is signing a document, that disposes of his/her property at death.
  • Is able to recall what he/she owns.
  • Is aware of his/her immediate circle of family, friends, and associates.

To make a valid Will, the testator must have all or these elements, but only at the critical time of execution of the Will.  Hartley v. Lord, 38 Wash. 221 (1905) [“Decrepit old” testator was shown to have been unquestionably “mentally deranged” within half an hour before signing his Will, yet found to have testamentary capacity.]    Estate of Lundgren, 189 Wash. 33 (1936) [79 yr-old testator with long-time affliction of progressive diseases and mental disorders, found insane by three physicians, with testamony that when he made his Will, three days before his death, he was very sick, almost boind, with his mind p

Estate of Kessler, 95 Wn.App. 358 (1999)

In the most recent significant case in Washington dealing with lack of mental capacity, Estate of Eubank, 50 Wn. App. 611, 618 (1988), the Court opined:

Evidence challenging testamentary capacity usually consists of medical testimony, testimony of attesting witnesses, and testimony of other lay witnesses.  [Citation omitted.]

With respect to medical testimony, it has been held that special consideration should be given to the opinion of the attending physician.  Estate of Reilly, 78 Wn.2d 623 (1970); [Citation omitted].  Although medical testimony and the testimony of attesting witnesses are more commonly given, any testimony that is credible, internally consistent, and supported by other similar evidence is admissible to determine testamentary capacity [Citation omitted].

Representative Washington cases:

  • Inability to remember one’s relatives:
    • Estate of Moulton, 1 Wn. App. 993 (1970).
    • Estate of Forsman, 177 Wash. 38 (1934).
    • Estate of Thomas, 165 Wash. 42 (1931).
  • Inability to remember one’s property:
    • Estate of Moulton, as above.

C.  Organically Impaired Testators.

1.  The Retarded Testator.  Mental retardation is normally the product of brain damage, which can occur prenatally (as a result of an illness to one’s mother, such as measles) or postnatally (from illness or trauma).  Brain damage takes many forms, and the resulting impairment to mental functioning varies widely.  Very few American appellate decisions have seriously discussed the will making ability of retarded persons.

2.  The Handicapped Testator.  The situation of the handicapped testator (one with a physical disorder that impairs motor-sensory skills without serious change in psychological behavior) really has nothing to do with the general rule of testamentary capacity.

Representative Washington cases:

  • Estate of Johnson, 20 Wn.2d 628 (1944) — Testator was paralyzed, unable to write or speak, and attempted to communicate with his attorney through movement of his head in response to questions.
  • Estate of Chapin, 17 Wn.2d 196 (1943) — Testator had had a stroke, had very limited speech, was partially paralyzed, was bedridden, and described by her physician as hemiphlegic.
  • Estate of Faucett, 160 Wash. 295 (1931) — Testator had cancer and was unable to speak clearly and too weak to write or make signs.
  • Wilson v. Craig, 86 Wash. 465 (1915) — Testator had had a stroke the day before making his Will, could speak only with difficulty, was partially paralyzed, and could sign his Will only by mark.

3.  The Senile Testator.  The largest category of testators with organic impairments are the senile testators, which fall into two subcategories: senile dementia (including Alzheimer’s) and atherosclerotic psychosis.  Representative Washington case:

4.  Drug Abusers and Alcohol Abusers.  The wills of drug addicts, heavily sedated persons, and alcoholics are routinely challenged.  Representative Washington case:

  • Schafer, 8 Wn.2d 517 (1941) — Testator was in hospital with incurable cancer, in pain, and given opiates for its relief.

D.  Functionally Impaired Testators — The Schizophrenic, Paranoid, Manic, or Depressed Testator.

Courts have a difficult time with nonorganic mental illness, and the results of these cases are bizarre.  These mental conditions generally get lumped under what is known as the “Insane Delusion” rule.

E.  The Insane Delusion Rule.

The law has simply not kept up with medical art.  The law on capacity begin with the notion that “idiots and persons of non-sane memory” should not be making wills.  This general statement, elaborated by the testamentary capacity rule, may at one time have adequately handled organically impaired testators so long as making a will was thought to be be as meaningful as making a simple contract.  However, it never really dealt with mental disorders in which the testator’s memory was not impaired.  Courts could find that a will was valid if the testator in a criminal case could have been found to be mentally unable to form criminal intent.  This did not set will with Courts, since a testator who could not tell right from wrong could still have capacity to make a will.  In order to cover the problem of the testator who had testamentary capacity but who nonetheless was unqualifiedly crazy, Courts invented the notion of “insane delusion.”

Judges have concocted a number of explanations for insane delusion:

  • “A fixed belief in something that no rational person would believe in.”
  • “A mental disease in which persons believe in what they imagine as though it were real.”
  • “A false and fixed belief not founded on reason and incapable of being removed by reason.”

These explanations contain the following common elements.  The testator:

  • Possesses an irrational acceptance of a phenomenon as actual, when it is not actual, and in contemplation of the phenomenon,
  • Changes his/her testamentary plans.

The cases generally play out in one of two ways:

  • The Paranoid Testator. The testator who believes that one or more persons are out to harm him/her by taking his/her property or doing him/her physical injury, with the testator showing symptoms of paranoid schizophrenia or paranoia.  The testator believes rationally, except for the delusion, and generally disinherits the persons he/she believes to be his/her enemies.
  • The Crank Testator.  The testator who entertains socially unacceptable philosophical, religious, or political views, for example:
    • Communicating with the dead.
    • Engaging in witchcraft.
    • Believing in divine revelation.
    • Faith healers.
    • Charismatics, etc.

    These people are probably not psychotic and may not even be mentally ill, just far off the continuum of maintaining socially acceptable beliefs.

The most recent significant insane delusion case in Washington is Estate of Meagher, 60 Wn.2d 691 (1962), where the Court opined:

It is not a question whether the testator has general testamentary capacity, for many persons laboring under insane delusions may be competent to make a Will [Citation omitted], but whether the insane delusions under which the testator suffered materially affected the will he made.  In other words, is it reasonably certain that but for the insane delusions, [the contesting beneficiary] would have received a materially larger [distribution from the estate]?  At page 692.

A more significant insane delusions case (which invalidated the testator’s Will on the basis of insane delusions, unlike the foregoing case) is Estate of Gwinn, 36 Wn.2d 583 (1950), where the Court opined:

[A] delusion which induces a testator to make his will, but which does not affect the provisions of such will, does not render it invalid.  However, if the insane delusion is of such a character and operates in such a manner that by reason thereof, the testator disinherits a natural object of his bounty, such as one of his children, which he would not have done had he not been laboring under such insane delusion, then the testator is regarded as one not having capacity to make a will, and a will so made is not valid.  At page 586. An insane delusion is a false belief that a person of sound mind in similar circumstances would not hold and from which one cannot be dissuaded by any evidence or argument, and that materially affects the disposition of the estate.

Representative Washington cases:

  • Estate of Watlack, 88 Wn.App. 603 (1997) — Testator believed his children had stolen ~$100,000 from him.
  • Estate of Meagher, 60 Wn.2d 691 (1962) — Testator believed her “adoptive” son had forged her earlier Will, entered her safety deposit box and removed her Bonds, and had illegally had a Guardian appointed for her.
  • Estate of Gwinn, 36 Wn.2d 583 (1950) — Testator believed that his son had accused him of having sexual relations with his wife’s nurse.
  • Estate of Torstensen, 28 Wn.2d 837 (1947) — Testator believed that his son had been incarcerated in jail.
  • Estate of Klein, 28 Wn.2d 456 (1947) — Testator believed that his daughter tried to poison her.
  • Estate of Hanson, 87 Wash. 113 (1915) — Testator believed in and practiced spiritualism, consulted a picture of her deceased husband’s brother on business and family matter, and claimed to see and converse with the picture about the spirits of her husband and son.
  • Ingersoll v. Gourley, 78 Wash. 406 (1914) — Testator believed that her sole Beneficiary, the head of a religious sect, was endowed with supernatural power and character.

F.  Effect of Commitment to a Mental Institution or Appointment of a Guardian.

  • Estate of Bottger, as above.
  • Estate of Miller, 10 Wn.2d 258 (1941) — Testator had been charged with insanity, held in hospital for treatment and observation for eight weeks, had a Guardian appointed for her estate, and was then discharged.
  • White v. White, 111 Wash. 354 (1920).
  • Estate of Rutherford, 110 Wash. 148 (1920).
  • Dean v. Jordan, 194 Wash. 661 (1938)
  • Estate of Ney, 183 Wash. 503 (1935).
  • Estate of Lundgren, 189 Wash. 33 (1936).

E.  Presumption of Testamentary Capacity

The Courts have universally held that the time to determine whether a testator had testamentary capacity is the date of execution of the testator’s will.  Courts will admit evidence on the testator’s state of mind within a reasonable period before or after the execution of the will, but they are adamant in the respect they give to the actual moment of execution.  In some jurisdictions, attesting witnesses are entitled to greater creditability than other witnesses on the issue of testamentary capacity because the former were present at the moment when the testator signed the will.

Over the centuries, Courts have adopted the rule that every person is presumed sane, shifting the burden of proof of lack of sanity to its challenger.  This presumption is ubiquitous in will contests.  Usually, the Courts go even further and:

  • State that a duly executed will is presumed to be free from any taint of lack of capacity or undue influence, and
  • Treat the presumption as an evidentiary substitute that attaches to the proponent of a will when the proponent shows that the will was executed with due formalities.

The judicial treatment of evidence of lack of mental capacity is treated similarly to that of presumption of capacity.  For example, when Courts are faced with the Testator’s having been placed under a guardianship at or near the time of will execution, they state that the testator’s having been judicially determined to be incompetent and a guardian having been appointed does not mean that the testator necessarily lacked testamentary capacity.

Courts often state that unrebutted evidence of great age, physical illness, memory loss, regressive behavior, personal untidiness, or peculiar behavior is insufficient evidence to demonstrate lack of testamentary capacity.  In effect, the Courts are stating that the presumption of mental capacity established by due execution is not overturned by proof of advancing senility unless the evidence of senility is overwhelming.

The presumption of capacity that arises upon proof of due execution also assists the proponent of the will in carrying forward the burden of proof on the issue of testamentary capacity after the burden of persuasion has been shifted to the contestant to disprove capacity.  For the majority of Courts, the presumption survives contrary evidence and may be used by the trier of fact to evaluate contrary evidence.

Representative Washington cases:

  • Bottger
  • Eubank
  • Edmark

F.  Burden of Proof of Lack of Capacity

The allocation of burden of proof in will contests based on testamentary capacity is a crazy quilt of apparently conflicting and confusing maxims and principals which vary from state to state in an astounding variety of verbal formulae.  Courts assign such burden of proof in three distinct systems:

  • Remaining with the proponent of the will throughout trial.
  • Remaining with the proponent of the will until showing that the will was executed with proper formalities, at which time the burden shifts to the contestant to show that the will was the product of an unsound mind with the preponderance of the evidence. 
  • As immediately above, but that the contestant must disprove capacity not merely by the preponderance of the evidence but more strictly, by clear and convincing evidence.  In these states, the actual burden of persuasion shifts to the contestant, not just the obligation to come forward with some rebuttal evidence.  Washington is typical of this third category.

Representative Washington cases:

  • Bottger
  • Eubank
  • Riley
  • Johanson
  • Watlack
  • Edmark

G.  Summary

>Most will contests challenging the testator’s capacity fail.  The will contest that succeeds, when undue influence is not a factor, does so because the contestant can demonstrate the testator’s manifestly irrationally behavior at or about the time of execution of the will.  If this behavior is directed at an heir of the testator, Courts will act.  The kind of will contest most likely to succeed is one closely modeled on the insane delusion rule involving a delusional structure on the testator’s part regarding a spouse or child.

Part of the reason for the low success rate of will contests is the formidable handicaps established by the Courts.  The states most unfavorable to will contests, such as Washington, not only place the burden of proving lack of mental capacity on the contestant but also require the contestant to prove lack of mental capacity by clear and convincing evidence.  However, when undue influence becomes an issue in a will contest, the proponents lose some of their judicial favoritism, and the contestants have some practical help from the system of presumptions and burden of proof.

1.  Lack of Mental Capacity
Torstensen, 28 Wn.2d 837 (1947).
Johnson, 20 Wash 2d 628 (1944).
Landgren, 189 Wash. 33 (1936).
Ney, 183 Wash. 503 (1935).
Forsman, 177 Wash. 38 (1934).
Thompson, 165 Wash. 42 (1931), affirmed 165 Wash. 42 (1931).
Adams, 164 Wash. 64 (1931).
Faucett, 160 Wash. 295 (1931).
Rennie V. Washington Trust Co., 149 Wash 357 (1928).
Geissler, 104 Wash. 452 (1918).
Est. of Pond v. Faust, 95 Wash. 346 (1917).
Hartley v. Lord, 38 Wash. 221 (1905).

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