When does a person lack the ability to sign a will? Most of us would agree, for instance, that a person diagnosed with moderate to severe dementia, who signs a will leaving all her property to a door-to-door salesman she never before met, probably should not be bound by that will.
The question is, when can and when cannot a person sigh a will?
The Massachusetts Appeals Court considered this issue in Haddad v. Haddad (Massachusetts Appeals Court No. 19-P-1378, January 12, 2021). These are the facts:
In 2017, after their father, Antoine, died, Joseph A. Haddad and Alain A. Haddad discovered that in 2011 Antoine had changed his estate plan (will and trust) to leave all his property to their brother Marcel A. Haddad.
Joseph and Alain asserted that Antoine lacked sufficient understanding at the time he signed the estate planning documents. If they were correct, the 2011 estate plan would be ineffective and an earlier estate plan, treating the children equally, would control.
“Sufficient understanding” to sign estate planning documents, the issue Joseph and Alain sought to address, is referred to in the law as “testamentary capacity.” The word “testamentary” refers to the fact that estate planning documents are a testament to one’s final wishes and “capacity” refers to one’s ability to understand. Thus, a person making an estate plan must understand that he or she is making testament to his or her final wishes. A persons making a will is referred to as a “testator,” a person making testament.
The court framed the issue as this: whether at the time Antoine executed the 2011 estate planning documents he possessed “testamentary capacity.” The court described “testamentary capacity” as follows:
Testamentary capacity requires ability on the part of the testator to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.
A person is presumed to possess testamentary capacity (as elaborated below).
The court described the relevant facts as these: Antoine was close with his three sons and they were close with each other (their mother having died when they were young). Joseph and Alain remained home until they were married and obtained their own homes. Marcel remained single, and eventually became Antoine’s primary caretaker, looking in on him daily, taking care of the house, and taking Antoine to medical appointments.
In 2004, Antoine, then age 75, established an estate plan that left his property to his three sons equally.
Antoine worked until age 80 and retired in 2009. Following retirement, Antoine’s health began to decline. He slept excessively, appeared weaker, become confused easily. He became forgetful: he would forget to take his medications or turn on lights in the dark or air conditioning in the heat. He would lose his train of thought. He would ask the same question repeatedly. He stopped driving.
In 2010 Antoine had a tumor removed from his brain. Brain scans from 2010 and 2011 showed that Antoine was suffering from frontal lobe atrophy affecting comprehension, reasoning, and language.
By February 2011, Antoine had became more sedentary, lethargic, confused, and unengaged.
In July 2011 Antoine changed his estate plan to leave all his property to Marcel. Marcel explained that Antoine told him (Marcel) that he (Marcel) had been good to him (Antoine) and that his bothers had their own homes and he (Antoine) wanted Marcel to have a place to live.
Two years later Antoine was formally diagnosed with “profound dementia.”
The court explained: At the time of executing a will or other estate planning document, a testator must be free from delusion and understand the purpose of the will, the nature of his property, and the persons who could claim it. A person may possess testamentary capacity at any given time and lack it at all other times--that is--a testator may possess testamentary capacity amidst periods of confusion, delusion, or incapacity.
A testator is presumed to possess testamentary capacity at the time he or she signs a document unless there is some credible evidence to question the testator’s capacity, in which case the person(s) advocating the documents must prove that the testator possessed testamentary capacity. When capacity is at issue, only witnesses to the signing of the estate planning documents, the testator’s physician, and mental health experts are permitted to give an opinion of a testator’s capacity.
Considering all the evidence, the court believed that although Antoine had short-term memory loss and brain scans from 2010 and 2011 showed brain atrophy affecting comprehension, reasoning, and language, Antoine nevertheless possessed testamentary capacity, as evidenced by his continuing to live at home fairly independently and that he remained conversant in his native language. The latter diagnosis of profound dementia, according to the court, was “of minimal, if any, significance to Antoine’s testamentary capacity on July 12, 2011.”
The court concluded: “[A]lthough it is clear that Antoine was in a period of cognitive and physical decline from at least 2010, in the absence of evidence that would permit a reasonable non-speculative inference that he lacked testamentary capacity on the only date that matters, the presumption [of testamentary capacity] was not [overcome].”
It is interesting that the court took the position that there was no credible evidence that Antoine lacked testamentary capacity on July 12, 2011, despite prior manifestations of significant cognitive decline and medical records demonstrating impaired comprehension, reasoning, and language, ultimately developing in to profound dementia.
The takeaway from Haddad v. Haddad is that if a person’s estate plan is reasonable and a diagnosis of dementia (or similar diagnosis) has not preceded the signing of the estate-planning documents, it will be difficult to establish a lack of testamentary capacity.
