Saturday, January 21, 2012

Mental Incompetency and Undue Influence: Not Easy Ways To Attack A Will

In two recent Virginia Supreme Court cases, both decided in the last year, the Court again demonstrates how difficult it is to attack a last will and testament on the basis of mental incompetency (or mental incapacity) and/or undue influence.

In the most recent, Weedon v. Weedon (link here)
, decided a little over a week ago, the trial court had found a last will and testament to be invalid on the basis of both mental incompetency and undue influence. The Virginia Supreme Court reversed that ruling. The facts of the case are lengthy and fairly complex (read the opinion in the link above), so I will not try to summarize them, other than to say it is one of the typical situations: Over time, one child becomes essentially in charge of a sole surviving parent’s life, both medically and financially, leading to conflict between that child and the other children, and of course, ultimately, a new will leaving everything to that child and disinheriting the others.

The Court also stated that legal assistant or paralegal, can assess the mental capacity of a client to make a will, an assessment the trial court (and no doubt many others) thought had to be made by the lawyer drafting the will.

The decision in Weedon was 5-2, with two justices dissenting, saying that since the trial court saw and observed the witnesses and their demeanor, and since there was credible evidence to support the trial court’s ruling, the trial court was in the best position to make rulings on the issues of incompetency and undue influence, and the appeals court should not overrule it (this gets into an appeals court’s standard in reviewing a trial court – which I won’t go into here).

The decision in Weedon shows yet again how hard it is to overturn a will based on undue influence. A few notable excerpts:

1. “[T]estimony that the beneficiary of the contested will...asked the siblings not to visit, was the only sibling who was talking to doctor, and isolated the testator is insufficient to prove undue influence by clear and convincing evidence.”

2. Quoting from an earlier case: “Not all influence is undue in the legal sense…. To be
classed as ‘undue’, influence must place the testator in the attitude of saying: ‘It is not my will but I must do it.’”

In the other case, Parish v. Parish, which was decided last year, the Virginia Supreme Court upheld a trial court finding that the testator was mentally competent to make a will, notwithstanding that he had suffered a traumatic brain injury at age 22 and had been declared incompetent to manage his own affairs in three different states by three different judges. The Court noted (again) that the mental capacity needed to make a will is different from, and much lower than, the capacity needed to manage business and personal finances:

Mental weakness is not inconsistent with testamentary capacity. A less degree of capacity is requisite for the execution of a will than for the execution of contracts and the transaction of ordinary business. One may be capable of making a will yet incapable of disposing of his property by contract or of managing his estate. Mental strength to compete with an antagonist and understanding to protect his own interest are essential in the transaction of ordinary business, while it is sufficient for the making of a will that the testator understands the business in which he is engaged, his property, the natural objects of his bounty, and the disposition he desires to make of his property. The condition of being unable, by reason of weakness of mind, to manage and care for an estate, is not inconsistent with capacity to make a will.

Both Weedon and Parish show what an uphill battle it can be to attack a will on the two most common theories – mental incompetency and/or undue influence. But, each case dependson its own facts and circumstances, and should be properly evaluated in light of the legal standards.