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Profiles of Contestable Trusts or
Wills
Beyond
the Grave: A Postmortem Analysis of Capacity
Dr. Vivian Clayton, PhD is a geriatric neuropsychologist at
Rossmoor Medical Center, Walnut Creek. She is co-author on the CEB Action Guide Capacity
and Undue Influence: Assessing, Challenging, and Defending.
Introduction
As a geriatric neurophysiologist and frequent consultant in probate matters,
about 60% of my referrals from attorneys concern the issue of capacity in a
client's last few months of life. Usually, there has been an amendment made to a
trust that differs markedly from the client's previously stated dispositive
intentions. Frequently, there has been a new caretaker on the scene who may have
unduly influenced the client; in all cases, there are relatives who are unhappy
enough to bring a civil suit against those individuals who are to benefit from
the change in the estate documents. The capacity questions posed are of two
types: Did the client have the underlying capacity to amend his or her trust?
Was the client vulnerable to undue influence?
Warning Signs
Sudden and Uncharacteristic Change in Behavior
Human behavior is not predicable in absolute terms. Though a good predictor of
future behavior is past behavior, an even better guide is one's personality.
People age in character and preserve in later life the qualities that defined
them in earlier periods of life. A sudden and uncharacteristic change in
approach to dispositive issues is, by nature, a red flag.
Capacity
There are other red flags. In terms of capacity, determining the decedent's
ability to track his or her finances, such that they would be aware of the
nature and extent of their bounty prior to death, is important. An examination
of the decedent’s management of financial affairs in the last five to ten
years of their life is often revealing. While relatives who stand to benefit
from the altered estate plan might state that the decedent was paying his own
bills, examination of old checks may reveal that the only thing they were doing
was signing the check.
Identifying Family Members
It is also important to know if, up to the time of death, the decedent was able
to correctly and appropriately identify familiar family members. In the last
year of his life, a 93-year-old widowed gentleman married his step-daughter and
changed his estate plan to unduly benefit her. She was living with him in his
home, until the last few weeks of his life when he required nursing home
placement. Nurses and other siblings testified that in the last months of his
life, this gentleman kept calling the stepdaughter by her mother's name. In
looking at pictures of the two women, they certainly resembled each other, but
as the facts emerged in the case, it was clear that the stepdaughter did nothing
to clarify his confusion.
Undue Influence
In terms of undue influence, a red flag is not always raised by the arrival of a
caretaker to provide assistance. There are many widows as well as widowers, who
solely relied on their spouses to track and maintain all the finances. When the
spouse dies, an adult child or even a fiduciary might assume this responsibility
and do an honest and reasonable job. The red flag does not necessarily become
unfurled, when, in the face of declining mental and/or physical health, even
further dependence on a caretaker is required.
The Caretaker
If the caretaker starts to isolate the client, making it harder for the family
to visit, or refuses to allow the client to answer the phone, or leaves the
elder alone at night when that is the very thing the elder most fears, there is
reason to question if undue influence was not a motivating factor in an
amendment or change of terms in the trust.
Locks on doors being changed or trips taken with the caretaker without informing
the family are also warning signs. As the elder is increasingly isolated from
their usual friends, family and social acquaintances, and the importance of the
caretaker looms larger, the elder has less freedom to reason and consider
alternatives for themselves.
Medical records
Medical records are relatively useless in determining whether an individual had
the capacity to alter a trust in the last months of life. Physicians are not
trained to probe about financial matters and never ask a patient about the size
of their estate. Most medical admission forms require that the client identifies
who the hospital should notify in case of an emergency. It is rare, however, for
administrative personnel to question who is identified. Physicians will note the
patient's alertness and attention, both being mental function deficits, and
comment if the patient is a good “historian” with regard to prior medical
conditions (long-term memory). Many do ask questions about orientation to time,
place and person.
Nurses and rehabilitation specialists are most likely to make more in-depth
notation of a patient's ability to communicate and observe fluctuations in
short-term memory and ability to concentrate, in addition to mental function
deficits noted in the Probate Code §811.
Last months of life
Descriptions of the decedent's functional capacities in the last months of his
or her life are very useful to the neurophysiologist. At the time of the
amendment change, if a client was showing decreased ability to perform complex
tasks such as planning and making dinners, grocery shopping, or putting clothes
on properly, these are correlates of decreased cognition that research has shown
goes hand in hand with declining capacity. Questioning a defensive caretaker
about these types of activities often puts them at ease, as they are
unsuspecting of the correlation between capacity and these practical tasks of
daily living.
A decedent, in the last six months of life, wrote a holographic will leaving
everything she owned to the managers of her apartment on whom she had become
increasingly dependent. They were emphatic about not being present when she
wrote this document. However, given the kinds of help they were providing,
especially setting up her doctor's appointments because she was no longer able
to keep track of time, it was simply not feasible for her to know the correct
date. Yet, there at the top of the document, was not only a date, but the
correct year. In addition, her neighbor had noticed two weeks before the
decedent died, that she referred to the current year as “1919.” Furthermore,
she had failed to show up for two arranged dental appointments; they were not
marked on her calendar, either. These cumulative bits of evidence greatly helped
her family in bringing charges of undue influence against the apartment
managers.
Conclusion
Issues of undue influence and capacity can take time to determine and may linger
long after the decedent’s death. The considerations outlined in this article
should be taken into account when changes to an estate document have been made
and the decedent’s state of mind, at the time of making the changes, is in
dispute.
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