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Appeals Court Rejects 2004 Will Based on Lack of Capacity

By Harry S. Margolis

In the case of  Paine v. Sullivan (Mass. App. No. 10-P-289, July 22, 2011), John L. Sullivan executed a will on June 26, 2004.  He had been diagnosed as suffering from dementia and had been advised to stop driving as early as October 2001.  He needed supervision when his wife was not at home and had given up handling the family finances, formerly his domain.   

The Appeals Court here finds that these facts were sufficient to rebut the usual presumption in favor of testamentary capacity, thus transferring the burden of proving capacity to the proponent of the will, Susan W. Paine.  In fact, Ms. Paine was successful at the trial court level, her expert having testified that based on the medical record Mr. Sullivan still only had mild dementia in 2004 and the judge giving weight to the judgment of the attorney drafting the new will that Mr. Sullivan had capacity.   

The Appeals Court disagrees on both counts, finding that the expert witness "cherry picked" favorable items from the medical record and ignored others.  In terms of the presumption in favor the attorney finding capacity, it finds "plain error" and lays out the following guide for any attorney preparing a new will for an older client:   

The attorney had not seen John in a number of years and only spoke with him by telephone; John simply verified he wanted what [his wife] wanted.  The attorney was unaware that John had been diagnosed with dementia in 2001.  While we agree with the judge that it is very likely that the attorney would not have drafted a will for a client he believed to lack testamentary capacity, the attorney admittedly did nothing to determine whether John understood the will as drafted, knew the natural objects of his bounty, had a general understanding of his finances, or was suffering from any ailment that might influence his dispositions.  It is John's capacity at the time he executed the will that is at issue.  The record is virtually barren of any evidence of his capacity when the will was executed except from the witnesses to the will.   

We don't know how the new will differed from the prior one, but whenever there is an unequal distribution of assets among potential heirs an attorney must prepare for a challenge and take extra steps to ensure that the client has capacity and is not subject to undue influence.