Neuroscience Evidence Used in Capacity and Undue Influence Determinations in Probate Cases
Recent Cases in Law and Neuroscience, Curated by the Center for Law, Brain & Behavior and the Shen Neurolaw Lab with support from the Dana Foundation
Neuroscience evidence, especially expert testimony about diminished cognitive function, CT scans, and MRI scans, has been used in connection with testamentary capacity and undue influence issues arising in probate cases concerning wills, trusts, and transactions. The evidence has been proffered by both plaintiff and defense, and at both summary judgment and trial.
In a California case, 90-year old Catherine Pearson wrote her children and grandchildren out of her will after her husband’s death, choosing instead to give the inheritance to St. Jude Children’s Research Hospital in accordance with her late husband’s wishes. The grandchildren filed a petition to invalidate their deceased grandmother’s trust, arguing that their grandmother lacked testamentary capacity due to delusions. A neuropsychologist and psychiatrist both reviewed Pearson’s medical records, and offered expert testimony that there although there was evidence that Pearson had a mild cognitive impairment, there was not evidence of a mental disorder or delusional disorder. However, both doctors testified that Pearson developed delirium, a transient mental disorder, at the time of her husband’s death but that it typically clears quickly and there was no evidence of it at the time of trust execution. The husband died in October 2015, the delirium was present during an appointment in late October 2015 but largely subsided by late November 2015, and the will was changed in February 2016. As such, the court found there was insufficient evidence that Pearson had delusions when she modified her will, and rejected the grandchildren’s petition. Eyford.
A similar issue arose in the Texas case of Florene Neal. Florene experienced declining health, including a stroke and diagnosis of vascular dementia, in addition to symptoms of cognitive deficits including hallucinations, confusion, and short-term memory problems. Unable to care for herself, she spent the final years of her life in a nursing home. Shortly after being diagnosed with dementia in August 2011, Florene decided to change her will to a new, fourth version in January 2012, disinheriting two of her children, including Randall, and named her other son, David, as the independent executor and gave him durable and medical power of attorney. Florene did not state why she disinherited her other two children, but Randall alleged it was because David assumed control and care over Florene after her dementia diagnosis. However, Florene’s friend testified that Florene said that Randall tried to have her arrested and that she was concerned about money disappearing from her bank account.
Upset at these changes, Randall filed suit and argued that the probate court erred in admitting the will because his mother lacked testamentary capacity and was under undue influence at the time of execution of the will. In evaluating Randall’s claim, the court recognized Florene’s declining health, but found that the medical records indicated that Florene’s dementia was stable and she was mentally functional at the time of the will. Due to non-conclusive medical records and the conflicting testimony of Florene’s children, the court found that there was insufficient evidence to find lack of testamentary capacity.
Randall similarly alleged undue influence by David, but the court found no evidence beyond Randall’s speculation that this was the case, as Florene described her concerns about Randall to her friend before she changed her will. Neal.
Similarly, testamentary capacity and undue influence issues were at issue in the Connecticut case of Paul Pizzo, Pizzo died at the age of 100 in 2017, and had executed a will in 2010. The 2010 will expressly disinherited one of his granddaughters, Stacy Holloway, and Stacy argued that “the 2010 will should not have been admitted to probate because, when the decedent executed it, (1) he was not of sound mind, (2) he was suffering from an insane delusion, and (3) he was under the . . . improper and undue influence” of her aunt Linda.
The plaintiff’s expert was Janice Olivieri, who treated Pizzo for many years and who testified that the he had been diagnosed with dementia had multiple infarcts in the frontal lobe of his brain. This had “left him with scar tissue that, in her opinion, would have caused him to have difficulty understanding a complicated legal document such as a will.” However, the defendant’s expert, forensic psychiatrist Kenneth Selig, opined that the frontal lobe of the decedent’s brain was not severely damaged, because an MRI and CT scan showed no more than two infarcts in that area. Dr. Selig suggested that the decedent’s normal daily functioning was more significant than past brain damage in assessing testamentary capacity at the time of executing the will. The court found sufficient evidence to conclude that Pizzo did not lack of capacity, and also that there was not sufficient evidence of undue influence. Holloway.
Evidence of degenerative brain diseases have also been used in probate court summary judgment proceedings in New York. In one case, a daughter challenged her mother’s will on the grounds that she lacked testamentary capacity since he had Parkinson’s disease and progressive dementia. The 89-year-old mother, Sook Li, left $1,000 to two of her children, including the daughter challenging the will, and the remainder of the estate to her second daughter. The will states that the two children who received $1,000 had received material benefits during the mother’s life. Even though her mother’s neurologist and psychiatrist confirmed the diagnoses, the court found that there was no record that she was not rational or lucid at the time of the will execution. Due to conflicting evidence of the other daughter’s involvement with the attorney, the undue influence claim went to trial. Sook Li.
In another New York case, two children of a deceased parent disputed the parent’s gift of a house to her son, Charles. Her other son, John, sought to prevent this by arguing in court that his mother lacked capacity and that she was unduly influenced by the sibling. The son presented his mother’s medical records stating that she suffered from agoraphobia (a fear of leaving the home), had a prior brain hemorrhage, and was diagnosed with “modest” Alzheimer’s and “mild” dementia. But the court found that none of these were sufficient to prove lack of capacity or undue influence, and dismissed the petition. Varrone.
Taken together, these cases vividly illustrate that brain evidence is being used regularly to prove and disprove testamentary capacity and undue influence. However, medical diagnoses alone, such as Alzheimer’s disease or Parkinson’s disease, are insufficient for a court to find lack of capacity. Courts regularly favor behavioral evidence, and are willing to consider the possibility of a lucid interval in which an older adult has sufficient, momentary capacity to execute a will or contract. For more on these issues, see the MGH Center for Law, Brain & Behavior event: Our Aging Brains.
Citations: Holloway v. Carvalho, 206 Conn. App. 371 (2021); Matter of Varrone, 146 N.Y.S.3d 921 (Sur. Ct. 2021); Matter of Sook Li, 151 N.Y.S.3d 845 (Sur. Ct. 2021); Eyford v. Nord, 62 Cal. App. 5th 112 (2021); Neal v. Neal, 2021 WL 1031975.
Keywords: Connecticut, New York, Texas, California, aging brain, MRI, CT scan, dementia, Alzheimer’s disease, Parkinson’s disease, capacity, probate, dementia
This post is the 115th post as part of an ongoing Center for Law, Brain & Behavior (CLBB) series tracking the latest developments in law and neuroscience cases. To see previous posts about recent cases, see the full case archive on the CLBB website. To see updates on legal scholarship, see the Neurolaw News, hosted by the MacArthur Foundation Research Network on Law and Neuroscience. This project is made possible through support of the Dana Foundation.