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Thursday, February 18, 2021

Testamentary Capacity

Testamentary Capacity

by Samuel S. Reidy, Esq.

February 18, 2021

Unfortunately, it has become an all-too-common story.  A loved one is stricken with dementia and during the period he or she does not have possession of all of their facilities, an estate planning change is suddenly made.  Sometimes this new (and often unexpected) estate planning means the changing of beneficiaries in a Will, or a new Health Care Proxy or Durable Power of Attorney being named, or the transfer of real estate.  When the situation involves the sudden or unexpected change made in a person’s Will, the first questions that always comes up is focused on testamentary capacity. 

When a testator (the person making the Will) executes the new Will, he or she must have a certain type of capacity called “testamentary capacity.”  If the testator is lacking testamentary capacity at the time he or she made the Will, that Will would be invalid.  It may seem like an easy determination- if a loved one has dementia, how can they have testamentary capacity?  However, the issue is far more complicated and much harder to prove in Court than you may think.  In the matter of Haddad v. Haddad, the Massachusetts Appeals Court recently reversed a Superior Court decision and found that the only time that is relevant in analyzing if a testator has capacity is the moment the new estate planning documents are executed.


The facts of the Haddad matter are sadly typical.  Antoine Haddad was the father of three boys and was diagnosed with dementia in 2010 which led to his death from Alzheimer’s Disease in 2017.  After Mr. Haddad passed away two of sons learned that their father had changed his estate planning documents on July 12, 2011, to leave everything to their brother.  The two brothers brought a lawsuit against their other brother alleging fraud, deceit, conversion, unjust enrichment, lack of testamentary capacity, and undue influence.  After a bench trial, the Superior Court judge concluded that, while there was no evidence of undue influence by the other brother, due to the father’s declining mental state, he lacked testamentary capacity when he executed his new estate planning documents six years before his death.  This ruling put all three brothers on equal footing.


However, this decision was brought to the Appeals Court and was overturned.  The Appeals Court found that “Although it is clear that [the father] experienced a period of cognitive decline beginning around 2010, which included a diminishing facility… the critical question is whether he had testamentary capacity on July 12, 2011, when he executed his new estate planning documents.”  The Court further found that the “There was no direct evidence to rebut the presumption with respect to July 12, 2011, the day [the father] executed his new estate documents.  The Appeals Court held that the Trial Court erred on focusing her analysis on the gradual mental decline over time as opposed to the capacity that Mr. Haddad had on July 12, 2011.  This was the only date that was relevant.  It is well established that patients suffering from dementia can have moments of clarity and the Courts have held that those patients are able to execute new estate planning during those moments of clarity. 

There is a presumption that testators have testamentary capacity, but once the contestants produce "some evidence of lack of testamentary capacity, the presumption of [capacity] loses effect" and the burden shifts to the proponents to prove by a preponderance of the evidence that the testator was able "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[,] . . . freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property[,] [a]nd . . . ability at the time of execution . . . to comprehend the nature of the act of making a will."  Palmer v. Palmer, 23 Mass. App. Ct. at 250, quoting from Goddard v. Dupree, 322 Mass. 247 , 250 (1948).

Of note, in Rhode Island, once the issue of testamentary capacity has been raised, the Proponent has the burden of ‘going forward’ by a fair preponderance of the evidence either directly or circumstantially to prove that the testator possessed the mental capacity to make a will when it was executed.  Judge v. Janicki, 374 A2d 547, among other cases.  See also McSoley v. McSoley, 91 RI 61.

Due to the absence of any evidence to prove that Mr. Haddad lacked capacity on July 12, 2011 specifically, there was no evidence to show he did not have testamentary capacity and the presumption was that he did, in fact, have the requisite capacity on July 12, 2011.  

The Appeals Court emphasized the important point that “the relevant focus always remains on the moment of execution, even where the testator executes a will in the midst of periods of confusion, delusion, or incapacity.”

There are good aspects and bad aspects to this legal standard.  One good aspect is that a loved one may be able to execute helpful and appropriate estate planning even when facing the harsh realities of mental health decline.  One bad aspect is that people may be able to take advantage of our loved one’s frail mental state by convincing them to sign away their property or change beneficiaries when it is not what our loved one would have wanted.

If a testator does need to make changes during a serious illness, an experienced estate planning attorney can help document evidence of testamentary capacity.  If you have questions regarding estate planning or testamentary capacity, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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