When drafting a new or updated estate plan for a family or individual, it is crucial to ensure that the individual (“testator”) signing such formal documents has testamentary capacity and is not under any undue influence. Attorneys, including myself, are not licensed to practice medicine and cannot make such a determination. Therefore, how do you make sure that the individual understands what he or she is signing? Live by the Golden Rule outlined in Kenwood v. Adams,

“In the case of an aged testator or a testator who has suffered a serious illness, there is one golden rule which should always be observed, however straightforward matters may appear and however difficult or tactless it may be to suggest that precautions be taken: the making of a will by such a testator ought to be witnessed or approved by a medical practitioner who satisfied himself of the capacity and understanding of the testator, and records and preserves his examination and findings.”

Kenwood v. Adams, [1975] CLY 359.

Although this Golden Rule may not always be necessary to abide by, if there is any doubt that the testator is not “of sound mind,” it is an extremely helpful tool to use. In general, the elderly population of America—those aged 65 years or older—is expected to double from 35 million today to more than 70 million by 2030. With increasing age comes increasing mental capacity issues: dementia and Alzheimer disease is on the rise and increases exponentially with each new decade of an individual’s life.

What exactly is “sound mind” and why is it important to make sure the testator has such capacity?

Banks v. Goodfellow mentioned five criteria for a valid testamentary document:

1. Understanding the nature of the act of making a will and its consequences.
2. Understanding the extent of one’s assets.
3. Comprehending and appreciating the claims of those who may expect to benefit from the will, both those to be included and excluded.
4. Understanding of the impact of the distribution of the assets of the estate.
5. That the testator is free of any disorder of mind or delusions that influence the disposition of assets.

If you look closely, all five of these criteria require a deeper look into the testator’s mental state.  It is absolutely critical that the testator has a legal capacity to organize his or her wishes beyond death in a legal document. If the testator does not have such legal capacity to create a testamentary document, the document has potential to be hailed into court and cause arguments and discourse among family members.

An attorney who drafts the estate plan must keep two goals in mind. First, the attorney should facilitate the involvement of competent, older adults in important and meaningful processes such as will-making. Second, the attorney should identify those who lack capacity and protect them from the consequences of impaired decision making.

Overall, for one to “be of sound mind,” he or she must:

1. Know they are making a will;
2. Know the nature and extent of his or her property;
3. Know the “natural objects of their bounty,” and
4. Know the manner in which the will distributes his or her property.

Determining competency is critical, because drafting documents that last beyond death are worthless should the individual be deemed incompetent. This is generally only an issue if there is a contest created by an heir, beneficiary, or third party that challenges such a document. For example, if the testator created a will that bequeathed all of his or her property to only one of his or her children and specifically disinherited the other two children, the two disinherited children may contest such a document after the death of the testator. This could delay the probate process, inhibit the ability to distribute property to the correct heirs, and cost incredible amounts of money.

What is “mental capacity?” Generally, this is the term used to describe the cluster of mental skills that people use in their everyday lives. Neuropsychologically, it encompasses: memory, logic, the ability to calculate, and the “flexibility” to turn one’s attention from one task to another. So, what happens if the testator is medically tested for capacity? The best outcome is that the testator will be deemed legally competent to create such a document, and there is now evidence to aid such a document in the future. If the testator, however, is deemed incompetent, the attorney can assist in appointing a guardian and work on getting the documents outlined, assets organized, and estate finalized as much as possible before the testator’s death.

Furthermore, there are many individuals in this world that take advantage of those with diminished capacity. This is called undue influence and, although it is illegal and invalidates a testamentary document, it happens more than Americans would believe. Not only are many elderly individuals physically and emotionally abused and neglected, but they are also taken advantage of financially. More often than not, this financial abuse is a result from family members.

What is “undue influence?” Generally, this is when an individual who is stronger or more powerful gets a weaker individual to do something that the weaker individual would not have done otherwise. The stronger person frequently uses various techniques or manipulations over time to gain power and compliance. They may isolate the weaker person, promote dependency, or induce fear and distrust of others. Because undue influence, like mental capacity, raises the question of whether an individual is acting freely, the two concepts are often confused. Although diminished mental capacity may contribute to a person’s vulnerability due to undue influence, the two are distinct, and neurocognitive assessments cannot identify the presence of undue influence.

Overall, there are two types of undue influence. The first form is seen as a type of coercion: “this is not my wish, but I must do it.” The second type is seen as a type of “false goodwill,” or “cover coercion.” This is the betrayal of a trusting relationship as seen in two sub-forms: portraying unintended benevolence by the perpetrator, and generating undeserved goodwill from the victim. This “false goodwill” undue influence is the most common type.

Typically, a court will need to make the determination of whether or not undue influence has been exercised. In doing so, they consider a variety of factors, including whether the transaction took place at an appropriate time and in an appropriate setting and whether the testator was pressured into acting quickly or discouraged from seeking advice from others. Courts may also consider the relationship between the parties, and the overall “fairness” of the transaction.