Testamentary incapacity, undue influence, and insane delusions.

Author:Simmons, Thomas E.
Position::Abstract into II. Discussion A. Will (In


Testamentary incapacity, undue influence, and insane delusions are recurring doctrines in the context of an impaired, weakened, or confused individual leaving a will, the validity of which comes under question. In the case of In re Estate of Berg the South Dakota Supreme Court, in 2010, held that an individual possessed testamentary capacity even where he suffered a static lifelong delusion about the identity of his father and was unable to articulate an accurate estimate of his net worth. This article uses Berg as a means of framing the requirements of a valid Last Will and Testament along with the theories under which a will may be set aside, with special emphasis given to the doctrines of insane delusions and undue influence. The author offers an analysis of the holdings and outcome in Berg along with related cases and authority in context. Berg, the author concludes, was correctly decided, its reasoning squaring with longstanding deference towards the freedom of testamentary disposition, even for individuals with diminished capacity and mental delusions.

  1. INTRODUCTION II. DISCUSSION A. WILL [IN]VALIDITY 1. Testamentary Incapacity a. Nature and Extent of One's Property b. Natural Objects of One's Bounty c. Disposition One Wishes to Make 2. Insane Delusions a. Irrational Belief b. Not Susceptible to Correction c. Affecting a Bequest: Causation 3. Undue Influence a. Testator's Susceptibility b. Wrongdoer's Opportunity to Influence c. Disposition of Wrongdoer to do Wrong d. Results of the Influence: Causation 4. Other Roadblocks to Will Validity (or Theories for the Will Contestant) a. Fraud: Intentional Trickery and Deception b. Duress: Amped-up Undue Influence c. Tortious Interference with an Expectancy: A Nascent Tort Theory 5. The Uncertain Status of Mistakes B. ESTATE OF BERG: AN ILLUSTRATION OF FREEDOM OF DISPOSITION 1. The Facts and Background 2. The Procedure and Trial 3. The Opinion and its Quiet Legacy C. READING AND ASSESSING BERG III. CONCLUSION I. INTRODUCTION

    In the case of In re Estate of Berg, (1) the South Dakota Supreme Court upheld the validity of a will executed by Fred Berg, an individual under a conservatorship who suffered from numerous delusions and who had been unable to live independently for most of his adult life. Fred Berg's will left his estate to his nephew Roger to the exclusion of Fred's siblings and their descendants. (2) Following a three-day trial, at which a recognized psychiatrist offered his forensic opinion that Fred was thought disordered and psychotic on the date the will was made, the Honorable Jerome Eckrich held that Fred possessed testamentary capacity and that his will was not the product of undue influence. (3)

    Capacity to make a will depends on the individual being capable of identifying the "natural objects of their bounty" and both the nature and extent of their property. (4) Fred believed that his father was either the television and movie actor Fred MacMurray or a non-existent German man. (5) He had also, at some periods in the past, claimed several other non-existent relatives: a sister Hattie, a brother Charles, a niece Murtle, and a "common-law-son" Eugene. (6) Moreover, Fred indicated that his net worth was $100,000, while in fact it was five times that amount. (7) Nevertheless, the South Dakota Supreme Court upheld the will.

    The following discussion assesses will validity primarily through the lens of South Dakota law, although case law from other jurisdictions is also considered. The article's observation and conclusions have import on a wider scale than South Dakota as will validity doctrines share more commonalities than dissimilarities across the country. Forgery--where the testator (8) has not herself signed her will--has been omitted from this article. (9) The discussion excludes considerations of whether an otherwise valid will has been revoked either by the testator's acts or by operation of law due to certain categories of changed circumstances such as marriage. (10) The discussion ignores the operation of the slayer rule, which functions to override an otherwise valid bequest when the devisee kills the testator. (11) The discussion bypasses ethical issues present when the drafting attorney improperly benefits as a devisee. (12) The discussion omits an analysis of creditor claims or elective share petitions both of which can also defeat the operation of a valid will, in whole or in part. (13) Nor are pre-mortem will challenges explored. (14) Finally, I do not include the problem of nonprobate asset transfers such as accounts titled with rights of survivorship or governed by a beneficiary designation, even where the vesting of those rights may be contrary to the provisions of a will. (15) Instead, the following discussion centers on the validity, invalidity, or, in some cases, the partial invalidity, of a will. (16)

    As an additional threshold matter, it should be noted that the tests for capacity vary across different contexts. An individual's legal capacity to execute a deed or enter into marriage are assessed differently than the capacity to make a will. (18) An individual may qualify for the protection offered by a conservatorship yet still retain the ability to make a will. (19) Arguably, the capacity test for entering into a revocable trust agreement is different than the capacity test to make a will or to designate beneficiaries on a policy of life insurance even though all have similar testamentary objectives and outcomes. (20) The capacity to make a lifetime gift is assessed under a different standard than the ability to make a will, and the capacity to make an irrevocable lifetime gift may vary with the form or content of the gift. (21) The confusing array of capacity tests rests on the recognition that different legal acts or decisions depend on assessments of capacity particular to the act or decision in question. (2) In the discussion which follows, however, testamentary capacity will be considered in isolation.


    There are several different avenues by which the operation of a will may be frustrated as highlighted above. In this article, I focus on the threshold issue of testamentary capacity along with two additional doctrines by which a will can be held invalid once testamentary capacity has been established: insane delusions and undue influence. Situating these doctrines in relation to one another can be helpful in developing an understanding of the precise contours and limits of each legal concept. The doctrine of insane delusions in particular has often suffered from conflation with the related but independent question of testamentary capacity.

    Testamentary capacity precedes an analysis of either undue influence or insane delusions; it considers whether the individual had the capacity to understand the nature and extent of his property, to know the natural objects of his bounty, and to form an intent regarding the disposition of his property at death. The related but distinct doctrine of insane delusions asks whether an irrational delusion affected certain provisions of an otherwise valid will. The doctrine of undue influence considers whether one or more provisions of a will should fail on account of a wrongdoer's interference with the testator's estate plan.

    1. Will [In]validity

    Testamentary capacity focuses exclusively on an individual's mental faculties and ability to form a meaningful understanding of the relevant aspects of the environment. The individual's internal mental state is the sole issue. The individual is viewed in isolation with an eye towards determining whether she possessed the minimal mental abilities to form an intent to make a testamentary gift. The assessment of whether an individual possessed either testamentary capacity or incapacity is thus a gatekeeping function, but the outcome of the assessment is never entirely separated from the assessment itself: if the individual had testamentary capacity, the will instrument operates on her estate, but if an individual lacked testamentary capacity, then her estate will be distributed under the dictates of intestacy. Intestacy is a disfavored outcome, and so, accordingly, is an assessment that an individual lacked testamentary capacity. (23) Because the outcome of intestacy is undesirable, so too is a determination of incapacity. Thus, the law favors a finding of capacity because it disfavors the alternative outcome.

    Only after it has been determined that an individual had testamentary capacity will the doctrines of insane delusions and undue influence have any possibility of operating. An individual lacking capacity can never be subject to an insane delusion or undue influence because those doctrines describe invalidating circumstances on all, or portions, of an otherwise valid will; the doctrines of insane delusions and undue influence apply to wills executed by a testator with capacity. This is a significant point that is easy to miss because many reported decisions which discuss testamentary capacity also consider undue influence or insane delusions in the alternative, often allow the doctrines to overlap. (24) Some authority even muddily proclaims that "[a] person having an insane delusion is incompetent to make a will," erroneously collapsing insane delusions into considerations of capacity.

    All three doctrines--testamentary incapacity, insane delusions, and undue influence--require a careful consideration of the individual's state of mind, so a bleeding at the edges of the doctrines of incapacity and insane delusions in particular is not surprising. (26) Incapacity...

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