Use of Legal Terms in Will Contests: Implications for Psychiatrists

Daniel J. Sprehe, MD and Ann Loughridge Kerr, JD

This article reviews legal concepts involved in challenges to wills and how wills are influenced by psychiatric testimony. The outcome of litigation in certain landmark cases and in cases from the extensive experience of the first author is discussed. Clarifications of legal terms of art such as "lucid interval," "testamen- tary ," "," and "" are offered. Pre-death psychiatric evaluations are becoming increasingly important in an aging popula- tion more susceptible to mental impairment.

From the point of view of the , a volved contested wills were reviewed. A who is old and sick is still the careful survey of the facts and circum- owner of his assets and should be ac- stances surrounding the cases reveals corded the respect given any owner. To some interesting results. Although there ascertain and identify exceptions to those was an allusion to medical testimony, circumstances, the legal system has de- most of the judges in these cases did not veloped certain terms of art, which are seem to found their decision on the doc- not used by medical doctors but describe tor's report unless this doctor was the certain conditions, such as "lucid inter- treating physician. In no case was there a val," "," "undue in- testator who was in the last stages of fluence,'' and "insane delusion." These Alzheimer's disease, although there were legal terms are frequently mentioned in many early senility cases. Undue influ- cases in which the mental ence or was alleged in 14 cases and state of mind of the testator is a key issue. proved in 5 cases. In 3 cases the divorce To explain the influence of this use of of the testator and estrangement from the terminology. 23 landmark cases that in- child were mentioned. In all but 2 of the 23 cases, the testator appeared to be over Dr. Sprehe is clinical professor of psychiatry, University of South Florida, Tampa, FL. Dr. Kerr is an attorney in 70 years of age at the time of making the Clearwater, FL. This article was presented at the annual will in question, although the testator's meeting of the American Academy of Psychiatry and the Law, San Antonio, TX, October 1993. Address corre- age was not specifically mentioned in 10 spondence to: Daniel J. Sprehe, MD, University of South Florida, Suite 4, 800 West Martin Luther King Jr. Blvd., cases. In the 13 cases where the age of the Tampa, FL 33603. testator could actually be determined, two

Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 255 Sprehe and Kerr of the were over 90 years old. that does not bear directly on the provi- seven were over 80, and three were over sions of the will is not usually considered 70 at the time of signing the will at issue a reason to negate it. Generally, the courts before the court. will lean favorably in the direction of protecting family integrity if there is a Basic Issues Involved in balance of testimony, since it is in the Challenges to a Will state's interest that families care for them- Wills are usually challenged by dis- selves and not become wards of the state. gruntled family members who have been Suicide subsequent to a will does not in left out or slighted after an earlier will had itself negate the will. Courts, in the inter- named them in what they felt to be a more est of family maintenance, are unlikely to appropriate way. Occasions for these will uphold a will that pauperizes a helpless contests include: (I) a later will differing member of the family. Distant relatives from an earlier will, since any will acts to who have not seen a testator for many revoke prior wills, with different relatives years, but who are the only natural rela- as beneficiaries; (2) an older person dis- tives, seldom prevail in a will contest in poses of his or her property in a will that which the testator has willed his posses- is "detrimental" to family members who sions to a church, Moose lodge, or other had expected the property to be left to meaningful organizations in his life. them; (3) the older person marries or be- Courts have consistently held, in cases comes involved affectionately with a per- testing the validity of a will, that: "It is son who family members question; (4) the policy of the law to hold wills good the older person becomes mentally inca- wherever it can be done. This, according pacitated or shows of severe to the authorities, is particularly true of physical incapacity before the will is old people. They are, no doubt, generally made; (5) The older person becomes speaking, reasonably easily influenced more susceptible to the influence of oth- and are generally childish and forgetful ers by virtue of a change in his or her and possibly, from the layman's view- circumstances (i.e., either physical or point, not qualified to make a will. But mental disability or unusual dependence the only weapon these old people have to on the influencing person); (6) the older enforce consideration and good treatment person refuses medical intervention or a of themselves, and proper care, is the procedure that may be necessary to pro- power to dispose of their estate by will."' long his or her life, thus bringing up the In In re Estate of Weil the court noted that question of competency. short-term memory loss did not render a Hospitalization for mental illness alone testator mentally incompetent. "The ratio- is not a reason to consider a person in- nale behind the requirement that the tes- competent to make a will. A delusion that tator recollect who are 'the natural objects bears directly on the individual's reason- of his bounty' appears to be founded upon ing for provisions of his will would affect the reasoning that one of the purposes of testamentary capacity, while a delusion making a will is to change the prospective

256 Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 Use of Legal Terms in Will Contests of heirs so that they would not berson, an 89-year-old man left his estate take the property of the testator in the to his housekeeperlcaretaker of only one manner provided for by intestate succes- month and the court held "when consid- sion; and that while prospective heirs ered with the fact that the disposition of have no present legal interest in the tes- decedent's entire estate to a person he had tator's property, the law regards their ex- known for only a few weeks was an un- pectations as something which a compe- natural disposition, the 'before' and 'af- tent testator will normally have in mind, ter' evidence of the testator's mental con- for these expectations will, by the very dition was sufficient to sustain the trial act of making a , court's conclusion that decedent lacked be changed."* Further, the court reasoned testamentary capacity when the will in ". . .it is obvious that the inquiry concern- question was e~ecuted."~In this case the ing this element of testamentary capacity former housekeeper got too sick to care must be focused on whether the testator for the 89-year-old testator, so a woman has the capacity to know who these ob- who worked for his podiatrist got his jects of his bounty are and to appreciate power of attorney and moved him from his relationship to them (i.e., they are my his home without telling relatives where sons) and not whether in fact the testator to find him. This new housekeeper got appreciates his moral obligations and du- her to prepare a will that was ties toward such heirs in accordance with witnessed by her friends, who met the some standard fixed by society, the courts testator only once. They said that the tes- or psychiatrist^."^ tator was alert and stable when the bene- "The making of a will does not depend ficiarylcaretaker read the will to him and upon a sound body, but upon a sound that he seemed to understand it based on mind. By 'sound mind' is meant the abil- their single contact with him. ity of the testator to mentally understand The is upon the person in a general way the nature and extent of who seeks to invalidate the will7 with two the property to be disposed of, and the exceptions: in the event a testator was testator's relation to those who would nat- adjudicated incompetent prior to signing urally claim a substantial benefit from the the will, then the burden of proof is upon will, as well as a general understanding of the proponents of the will signed during the practical effect of the will executed. . . incompetency8; and in cases of undue in- The fact that one is a user of narcotics fluence, the burden of proof is on the does not necessarily deprive him of tes- beneficiary. If a substantial beneficiary tamentary capacity."4 under a will occupies a confidential rela- "Mental capacity to make a will is de- tionship with the testator and is active in termined at the precise moment the will is the procurement of the contested will, the executed. . . . A will made by an insane of undue influence arises. person may be valid if made during a Active procurement means: (1) presence lucid inter~al."~However, there are ex- of the beneficiary at the execution of the ceptions to this rule. In the Estate of Lam- will; (2) presence of the beneficiary on

Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 257 Sprehe and Kerr those occasions when the testator ex- pacities in mind long enough to devise pressed a desire to make a will; (3) rec- and execute the will. ommendations by the beneficiary of an In one of the most interesting cases, the attorney to draw the will; (4) knowledge judge heard testimony from four nation- of the contents of the will by the benefi- ally known psychiatrists and several na- ciary prior to execution; (5) giving of tionally known pharmacologists. The tes- instructions on preparation of the will by tator had terminal cancer and, "out of the the beneficiary to the attorney drawing blue," had given her entire estate to a the will; (6) securing of to the hospital where a friend of hers worked. will by the beneficiary; and (7) safekeep- Since her brother had hoped to inherit the ing of the will by the beneficiary subse- estate of nearly $2,500,00, there was a quent to exe~ution.~ furious battle. Having heard extensive testimony, the judge stated that he was most convinced of the testator's compe- Testamentary Capacity tence by the fact that l l days after signing Testamentary capacity is a legal term the will, she had calculated the value of used to determine the ability of a testator her entire stock portfolio, both over-the- to competently sign a will. The standard counter and New York Stock Exchange. test of testamentary capacity in most in her own handwriting using the local states is as follows: newspaper. The judge stated that "This 1. The testator understands that he is was a remarkable exhibition of mental indeed making a will and appreciates the powers. It was not the work of a metas- effect of making that will. tasized brain, not the act of an unbalanced 2. He understands the natural objects mind or even of an affrighted mind; it of his bounty, meaning those individuals certainly was not the act of the mind of a whom society would naturally expect him child aged three to five." He discounted to remember in his will, especially rela- the expert testimony to the contrary.9 tives. Likewise, the court in another case dis- 3. In a general way he understands the counted the testimony of medical experts extent of his property and the form in who testified hypothetically as to the which that property is held; that is, cash. competency of a testator taking certain stocks, bonds, real estate, personal pos- levels of thorazine and phenobarbital in session, etc. It is not necessary that the favor of her treating physician who made testator have an exact dollar figure in two house calls a week and found her mind as to his net worth at the time of competent, as did the housekeeper, her making his will, but in a general way he CPA, and the lawyer's secretary (the law- should know whether he has a substantial yer had died).7 Again, the treating physi- amount of property, very little, etc. and cian and 26 other witnesses proved a tes- what form the property takes. tator competent, although she had senile 4. Lastly, the testator must have the dementia and unsound memory. Testi- capacity to hold these previous three ca- mony from two doctors with hypothetical

258 Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 Use of Legal Terms in Will Contests testimony was disco~mted.'~Psychiatric duct the conference and execution as if testimony was also involved in a case in such a will contest were a certainty. Pre- which a mother disinherited her sons who serve all documentation and consider the had not visited her often. The sons tried to desirability of recording by video tape. say that their mother could not understand 6. Be ever conscious of the fact that the natural objects of her bounty and a attorneys may be called upon to testify psychiatrist testified that she "was totally years after the will execution. Records unable to be aware and recognize the should be kept in perpetuity. relationship to her own children." The court stated, "We further hold that the Lucid Interval psychiatric testimony that Mrs. Weil did The concept of lucid interval is used as not know the true relationship between a defense of a will being contested for an her as a mother and her sons as sons did individual who is known to have been not influence in any manner testamentary severely demented or mentally ill for capacity insofar as it dealt with the legal some time. Black's Law Dictionary* de- requirement that she know natural objects fines lucid intervals as "intervals occur- of her b~unty."~ ring in the mental life of an insane person In cases in which testamentary capacity during which he is completely restored to might be questionable or in which the will the use of his reason so far restored that is going to be controversial, there are a he has sufficient intelligence, judgment, number of safeguards that attorneys and will to enter into contractual relations take.' or perform other legal acts without dis- 1. Procure detailed information from qualification or by reason of his disease. the client relating to assets and kindred. If In connection with Wills, a period of time close kindred are being excluded from the within which an insane person enjoys will, inquire as to the reasons for the the restoration of his faculties suffi- exclusion. ciently to enable him to judge his act." 2. Procure a psychiatric opinion as to The mere fact of the testator taking or competency as close to the will execution receiving drugs, even if the drugs are date as possible. the type that could influence the func- 3. Permit the witnesses to participate tioning of the mind, would not necessar- in both the preliminary conference with ily deprive the individual of testamen- the client and the conference immediately tary capacity or would not necessarily prior to execution of the will. render him susceptible to undue influ- 4. Prepare detailed memorandum of ence. The expert psychiatrist who is re- the preliminary conference and the exe- viewing such things as documents and cution conference, including memoran- medical records should seek evidence dum by the witnesses. through documented observations over 5. Be alert to circumstance that may cause the validity of the will to be ques- * Black HC: Black's Law Dictionary, 5th ed. Edited by Nolan JR, Connolly MJ. St. Paul, MN: West Publishing tioned. If such circumstances exist. con- Co., 1979, p 854

Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 259 Sprehe and Kerr time of periodic fluctuations in the per- been in the hospital, and when she re- son's cognitive state and correlate these turned home some items of small value, with the timing of the claimed lucid in- such as a gold-colored ice tray, were not terval in order to provide evidence of in her home. She blamed her stepdaughter temporary lucidity. This is especially and later changed here will from leaving true in dementia cases in which factors all of the residue of her estate to the such as medications, changing environ- stepdaughter to leaving only one-third to mental stress, and diurnal variation may her. The court upheld the will, saying that cause an individual to be more or less she was not having an "insane delusion." lucid at particular times of the day. It is because the things were actually missing, generally conceded by geriatric psychia- and went on to say that: "It should also be trists that individuals with advanced recognized that the will under attack was stages of Alzheimer's disease do not executed by this decedent after a series of have the capacity for lucid intervals, severe heart attacks and it is generally whereas individuals with vascular de- recognized that when a person is faced mentias and early stages of Alzheimer's with the stark reality of meeting his disease do have fluctuations in mental maker, that person is prone to forget the capacity.12 The cases in the author's past petty annoyances or prejudices and practice in which lucid intervals were to consider basic values." The case turned alleged in elderly individuals with ad- solely on the testimony of witnesses at the vanced Alzheimer's disease did not pre- signing and other witnesses at or around vail in court, since periods of the time. The court said, "Florida law is fluctuation in mental functioning could likewise well settled to the effect that not be established in these individuals. although an incompetency adjudication Three appellate cases are cited here in creates a presumption of lack of testa- which the testator had been adjudicated mentary capacity as to any will thereafter incompetent and then signed the will, and executed during the continuance of such the will was then contested after that ad- adjudication that such presumption may judication of incompetency. In two of the be overcome on proof that the will was cases, the wills were upheld, and in the executed by the adjudicated incompetent third, the part of a that benefited a during a lucid inter~al."~ person guilty of undue influence was set In the second case,13 a testator drank as aside. In the first case,' the testator died at much as a case of beer a day; the codicil the age of 79, having made her will at age being contested was one in which the 76. She suffered from chronic brain syn- guardian had been named a beneficiary drome and had been adjudicated incom- and the same guardian had participated in petent before signing her will, which the preparation and execution of the cod- named her stepdaughter, niece, and icil. The codicil benefiting the guardian brother as the beneficiaries of the residue and signed after adjudication was set of her estate instead of leaving it all to her aside, but others signed after adjudication "favorite" stepdaughter. The testator had were upheld. There is much case law to

260 Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 Use of Legal Terms in Will Contests support the finding that a chronic alco- action to the process of dying. Simple holic is considered to have the capacity, influence, however, differs from undue when sober, to make a will. influence. Undue influence implies the In the third case,5 a veteran who had concept of influence that comes from the been adjudicated incompetent with a di- outside and is applied with the intent of agnosis of schizophrenia left everything unfairly benefiting the person who exer- to his mother and nothing to his daughter, cises the influence. Questions most often who saw him rarely. She had been raised arise when someone who is in constant by her maternal grandparents because her attendance in the last days of the testator parents had divorced before the testator is made the beneficiary of a changed will. was hospitalized, and then her mother had The dying process includes regressing to died after the testator was hospitalized. earlier levels of mental functioning and The court stated that the testator's schizo- overutilizing denial, anger, and bargain- phrenia was controlled by medication and ing. Many appellate cases involving un- further that "Mental capacity to make a due influence originate in Florida, since it will is determined at the precise moment is a retirement haven to which old people the will is executed. A will made by an move in their final years, making new insane person may be valid if made dur- acquaintances and associates and leaving ing a lucid inter~al."~Evidence necessary their families. The court in In re Lamber- to prove a lucid interval includes infor- son held that "evidence. . .that a benefi- mation about the testator's conduct, his ciary moved decedent into her home, organic condition, the type of disposition, failed to notify his family, refused to no- and the opinions of othersI4 about his tify his friends of his whereabouts, and mental state. never told decedent of his wife's death two weeks before his own, was sufficient Undue Influence to sustain the trial court's finding that To successfully contest a will on the appellant procured the execution of the basis of undue influence, objectors must January 23, 1980, will by undue influ- show that the heirs had the opportunity en~e."~ and disposition to unduly influence a sus- Arizona courts have identified eight ceptible testator to obtain a coveted re- factors as tending to establish undue in- sult. The issue of susceptibility is usually fluence: (1) whether the person accused in the province of a psychiatrist who re- of undue influence has made any fraudu- views documents, reports, and lent representations to the deceased; (2) such and renders an opinion postmortem whether the will was hastily executed; (3) as to the testator's susceptibility to undue whether such execution was concealed; influence. Greist and els son'^ have con- (4) whether the person benefited was ac- tended that most dying individuals who tive in securing the drafting and execution execute death-bed wills have an increased of the will; (5)whether the will was con- susceptibility to influence for good or ill sistent with prior declarations of the de- because of a common psychological re- cedent; (6) whether the provisions were

Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 261 Sprehe and Kerr reasonable rather than unnatural in view that he had told his lawyer that he was not of the decedent attitude's, views, and leaving anything to his sister because he family; (7) whether the decedent was sus- did not think she would survive him and ceptible to undue influence; and (8) she was "well fixed." His will was upheld whether there existed a confidential rela- despite the fact that he thought he was a tionship between the decedent and the member of a SWAT team and a drug person allegedly exerting the undue influ- enforcement agent at age 84. The court ence. l6 found that since his delusions had nothing None of these factors alone would be to do with his sister. and because there sufficient to obtain a finding of undue was no confidentiallfiduciary relationship influence, but a combination of them between the testator and his beneficiary, could raise a question as to the existence his will should be upheld. Also, there was of undue influence. no proof that he was unable to manage his affairs. Insane Delusion The court has made a clear distinction Insane delusion has been defined as "a between a testator who has consistently spontaneous conception and acceptance "told a story" about his family as opposed as a fact of that which has no real exis- to one having a delusion. In Smith v. tence except in imagination. The concep- Smith, a former congressman had de- tion must be persistently adhered to serted his former wife and had lived for against all evidence and reason. It has years with a much younger woman, who also been defined as a conception origi- had medical training. His paramour had nating spontaneously in the mind without convinced him that he was unable to fa- evidence of any kind to support it, which ther children, and therefore, that the chil- can be accounted for on no reasonable dren he had in Massachusetts could not be hypothesis, having no foundation in real- his. He had, in fact, married his wife after ity and springing from a diseased or mor- she was pregnant with the first child. bid condition of the mind."17 In the latter When he disinherited his wife and chil- case the testator thought that he had been dren and left his estate to charity, since "kicked out" of his Masons' Lodge. His the paramour predeceased him, the will lawyer verified that he had not been was upheld because he did not have an kicked out of the Masons' Lodge, but the insane delusion. The court said. "The test testator refused to believe him. This will is his ability to exercise reason and reach was set aside because of insane delusion a rational conclusion however erroneous without psychiatric testimony. In Cap- with reference to them [the children]. Stu- pock v. ~arlson,'~the testator died at age pid error in either his reasoning or con- 84 and had a 92-year-old sister whom he clusion is not a lack of testamentary ca- disinherited. His sister claimed an interest pacity."I9 in the estate because the testator had left A belief based on evidence, however his money to a woman he had known only slight, is not a delusion that rests on no three or four years. Testimony revealed evidence but on mere surmise.20 This is

262 Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 Use of Legal Terms in Will Contests also affirmed in Owen v. ~rurnbau~h,~' Alzheimer's Disease in which case religious belief is distin- The particular testamentary problem guished from delusion. posed by Alzheimer's disease will, in all likelihood, increase in the next century. At the turn of the 20th century, only 4.1 Dead Man's Act percent of the American population was It is difficult to imagine a will contest 65 years of age or older, whereas by in which the exclusionary rule Dead 1985, 11.9 percent of the population was Man's Act does not play a crucial role. In at least 65. Conservative. projections are general, the Act provides that any person that this age group will grow to more than interested in the outcome of the litigation 12 percent of the population by the year is incompetent to testify in his own behalf 2000. Dementia affects approximately 10 concerning any conversation or event that to 15 percent of older adults. Fifty to sixty took place with or in the presence of the percent of older people with dementia are testator. Because those most likely to thought to suffer from senile dementia of have relevant information as to the testa- the Alzheimer's type. Alzheimer's dis- tor's mental condition and relationships ease has seven stages: (1) no cognitive are usually the testator's closest relative decline; (2) very mild cognitive decline and the parties to the contest, the Dead (forgetfulness phase); (3) mild cognitive Man's Act often excludes much of the decline (early confusional phase); (4) best evidence. The justification usually moderate cognitive decline (late confu- given for this sweeping exclusionary rule sional phase); clear-cut deficits are easily is that the opposing party cannot call on elaborated in a careful clinical interview; the testator to make a rebuttal. Dead denial is the dominant defense in this Man's Act prevents an interested person phase; (5) moderately severe cognitive from testifying on his own behalf con- decline (early dementia phase); (6) severe cerning any conversation or event that cognitive decline (mid-dementia phase): took place in the presence of the testator and (7) very severe cognitive decline (late if an adverse party in the contest is a dementia phase).23 Stages 5, 6, and 7 representative of the testator.22 The term definitely would involve lack of testa- "interested person" includes all parties to mentary capacity with no possibility of the litigation and all persons with an in- lucid interval return. Stage 4 is on the terest in the outcome but is defined to borderline. Persons in stages 1, 2, and 3 excluded persons who merely receive fi- usually have testamentary capacity.24 duciary appointments under the will. The first author has been an expert in Cases have held that neither the attorney 64 will contests over the past 28 years. who wrote the will nor any person with- Twenty-eight of those cases settle before out a direct monetary interest in the out- trial and 36 went to trial in probate come of the litigation is an interested course; 24 of them, including many that person. were settled, involved a psychiatric eval-

Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 263 Sprehe and Kerr uation done at the time of the making of episodes of lucidity between their epi- the will or a physician's certificate at- sodes of uncontrolled substance abuse. tached to the will at the time of it's mak- ing. These cases more or less insured that Pre-Death Competency the testator was of sound mind by having Evaluation a trained person present at the time of the When asked to do a pre-death compe- making of the will. However, one case tency evaluation for testamentary capac- was set aside by probate court when it ity, which evaluation will be attached to was shown by a later expert that the psy- an upcoming will, psychiatrists should be chiatrist who was present at the time of aware that they are not dealing with a the making of the will did not take into simple, ordinary making of a will. The consideration delusions held by the testa- essential ingredients of a will contest are tor. Undue influence was alleged in 29 of money and unhappy potential heirs. the cases; in 23 of these the will was Therefore, if the attorney or the testator upheld, but in 6 the will or the later cod- do no offer explanations, the psychiatrist icil to it was not upheld by the court. should ask questions to determine what is Fourteen of the cases involved the testator really happening. The psychiatrist should mahng a will while under guardianship. be suspicious of questionable testamen- Despite that fact, the will was upheld in tary capacity or undue influence in the 11 of the cases. The burden of proof shifts following circumstances: to the testator and his estate when a will is 1. The psychiatrists is assured that a devised while under guardianship be- competency statement is routine due to cause the testator has been considered the testator's age. legally incompetent. Lucid interval was 2. The appointment is made by some- alleged by defenders of the will in 20 of one other than the testator or his attorney. the cases with the Will being upheld in 15 3. The testator is brought to the ap- of these cases. Four cases not upheld in- pointment by someone who answers most volved testator with advanced stage 4 or of the questions for the testator and is stage 5 Alzheimer's disease at the time of reluctant to allow the testator to be inter- the making of the will, and there was viewed alone. nothing in the medical records to indicate 4. Specifics about the will are not any sort of lucid interval. A fifth case given, or the testator seems unclear about involved a severely psychotic paranoid specific items in the will. schizophrenic whose records in the hos- 5. There is reluctance to give infor- pital where he was being cared for at the mation about potential heirs and their re- time he made the will showed nothing to lationships with the testator. indicate that he at any time met the cri- It is important for the psychiatrist to teria for testamentary capacity. Many of understand that mere anger or hurt or a the lucid interval cases in which the will need to act in a mean way toward some was upheld involved severe chronic alco- potential heir does not in any way negate hol or drug abusers who had prolonged the will. The psychiatrist should assure

264 Bull Am Acad Psychiatry Law, Vol. 24, No. 2, 1996 Use of Legal Terms in Will Contests the testator that he or she has the right to 5. Gentry v. Briggs, 573 P2d 322,324-5 (Or Ct App 1978) disinherit someone; but the psychiatrist 6. In re Estate of Lamberson, 407 So 2d 358, needs information to establish that the 362-3 (Fla Dist Ct App 1981) anger or hurt is not based on a delusion. 7. In re Bailey's Estate, 122 So 2d 243 (Fla Dist Ct App 1960) The psychiatrist may become a spokes- 8. In re Estate of Supplee, Boyd v. Cooper, 247 person for the testator in a future will So 2d 488, 489 (Fla Dist Ct App 1971) contest where he has given a psychiatric 9. In re Estate of Witt, 139 So 2d 904 (Fla Dist Ct App 1962) evaluation to be attached to the 10. Dawn v. Comstock, 149 NE 507 ( 111 1925) As the population ages and as the prev- 11. Wilsey G: Testamentary capacity and undue influence. Fla Bar J p 113-17 (May 1987) alence of Alzheimer's disease increases, 12. Skoog I, Nilsson L, Palmerty B, Andreason it will be ever more important for testa- L, Svanborg A: A population-based study of tors to be examined carefully at the time dementia in 85-year-olds. New Engl J Med 328: 153-7, 1993 of their will-making in order to avoid 13. In re Estate of Van Horne, 305 So 2d 46 (Fla problems later. It will also be important Dist Ct App 1974) for psychiatrists to define the nature and 14. Estate of Dillenberg, 349 P2d 573,574 (Mont 1960) extent of lucid interval so that the courts 15. Greist JH, Nelson WF: Deathbed wills: the will have reliable information available to case for general susceptibility to the influ- them about such a possibility in cases ence of others. Cum Concepts Psychiatry Nov/Dec:6 -1 3, 1977 involving demented patients who have 16. Lewis JD: Will contests. Ariz Atty March: 21 not been examined contemporaneously 1990 17. Estate of Hodtum, Ohio Mechanics Inst v. with the making of their will. In the Nora Casesaree Harmony Lodge, 267 So 2d meantime, the courts are likely to con- 686 (Fla Dist Ct App 1972) tinue to use terms of art such as lucid 18. Cappock v. Carlson, 547 So 2d 946 (Fla Dist Ct App 1989) interval, undue influence, insane delu- 19. Smith v. Smith, 25 A 11 Prerogative Ct of sion, and testamentary capacity in an ex- New Jersey (1891) pedient way to decide legal cases without 20. Taylor v. McClintock, 112 SW 405 (Ark 1908) reference to scientific validity. 21. Owen v. Crumbaugh, 81 NE 1044 (I11 1907) 22. I11 Ann Stat ch 110, para 8-201 (Smith-Hurd References Supp 1983) 23. Gottlieb GL, Reisberg B: Legal issues in 1. In re Starr's Estate, 170 So 620, 624 (Fla Alzheimer's disease. Am J Alzheimer's Care 1935) Related Disorders Res MarchIApril: 28-30, 2. In re Estate of Weil, 5 18 P2d 995, 998 (Ariz 1988 Ct App 1974) Sec 175 ALR Testamentary 24. Gottlieb GL, Roseoff AJ: Preserving personal Capacity 891 automony for the elderly. J Legal Med 8:l- 3. Id at 999 47, 1987 4. In re Wilmotts Estate, 66 So 2d 465,467 (Fla 25. Redman FG: Testamentary capacity. Bull Am 1965) Acad Psychiatry Law l5:247-55, 1987

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