Judge Dudgeon recently spoke to the DuPage County Bar Association Civil Practice Committee on testamentary capacity, undue influence and executing estate planning documents in a talk he titled “Keeping the Vultures Away.” This blog entry contains my notes from that session and any inaccuracies are mine.
Testamentary Capacity: Judge Dudgeon began by reminding attendees of the three requirements for testamentary capacity as found in Estate of Wrigley, 104 Ill App 3rd 1008 (1st Dist., 1982): that the testator have sufficient mental ability to i) know and remember the natural objects of her bounty, ii) comprehend the kind and character of her property, and iii) make disposition of her property according to some plan formed in her mind.
To confirm that these three requirements are met Judge Dudgeon recommended:
• interviewing the testator without family members or friends in the room
• bringing in another attorney to help assess the testator’s mental ability
• developing a list of questions aimed at each of the three requirements
• asking the questions out of any order and repeating some questions
• having a conversation that reveals how aware the testator is of the world around her
• asking what medications the testator takes, why, and when she started taking each
• taking detailed notes that include testator’s answers, appearance, and behavior
Judge Dudgeon then pointed out some warning signs that should cause you to take a closer look at the testator’s capacity:
• family member or third party makes the appointment
• family member or third party wants to sit in on appointment
• testator’s attention wanders
• testator wants big changes to an existing plan
• testator uses charm and/or story-telling to hide her inability to answer
Judge Dudgeon recommended taking confirmation a step further if you have any doubts by getting a medical release from the testator and talking to her doctor(s), and/or having the testator professionally evaluated.
Undue Influence: Judge Dudgeon recommended referring to the relevant Illinois Pattern Jury Instructions on this topic (IPI 200.00 et seq.) The IPI defines undue influence as “influence exerted at any time upon the decedent which causes him [her] to make a disposition of his [her] property that is not his [her] free and voluntary act.” (IPI200.09)
Undue Influence can arise from
• A specific act or conduct evidencing undue influence, or
• The existence of a fiduciary relationship between the testator and her beneficiary where i) the testator reposed trust and confidence in the beneficiary, ii) the beneficiary prepared the relevant document or caused it to be prepared, and iii) the beneficiary gets a benefit from the document greater than others with an equal claim. (see also IPI 200.04)
Judge Dudgeon then pointed out some signs that should cause you to take a closer look at the influence issue:
• Did a family member or third party make the appointment?
• Does this person want to sit in on appointment?
• Does this person hold a POA and/or pay the testator’s bills for her?
• Does this person make the medical decisions for the testator?
• Does this person or his family/children substantially benefit from the new document?
Executing the Will: Judge Dudgeon recommended that when it is time to execute the will you remember what it is the witnesses are witnessing and attesting to: that “1) he was present and saw the testator or some person in his presence and by his direction sign the will in the presence of the witness or the testator acknowledged it to the witness as his act, (2) the will was attested by the witness in the presence of the testator and (3) he believed the testator to be of sound mind and memory at the time of signing or acknowledging the will...” 755 ILCS 5/6-4(a).
Judge Dudgeon recommended explaining these requirements to each witness and asking them to make notes describing why each thought the testator was “of sound mind and memory” and that they saw her sign the document. To give the witnesses information to make their determination Judge Dudgeon recommended having a conversation with the testator in front of the witnesses.
Finally, Judge Dudgeon recommended dictating notes to your file explaining what you did to assure the testator had the requisite capacity and was not subject to undue influence, and which contain forwarding addresses and contact information for the witnesses.
Submitted by Brian D. Moore