In a long-awaited decision, the Massachusetts Appeals Court affirmed a probate court decision upholding challenges to a will on the grounds of undue influence and the testator’s lack of capacity.
In the case of Adler v. Adler, Appeals Court No. 10-P-1760 (June 7, 2013), the Court held that the probate court properly disallowed a 2001 will based on the testator’s lack of mental capacity, and because the will was the product of undue influence exercised over the testator by her son.
In Adler, the testator (then ninety years old) deeded over certain property to her son in 2000, and made a new will favoring her son and virtually excluding her daughter in 2001. The testator was diagnosed as having moderate to severe Alzheimer’s in late 2003. Despite the passage of time, the Court upheld a finding that the testator did not have the capacity to make a will (or deed property) when the instruments were executed.
The contestants’ expert had testified that, given the progressive nature of Alzheimer’s, it was likely the testator was “struggling with cognitive compromise” in 2000 and 2001. This conclusion was bolstered by testimony from certain family members who observed patterns of mental confusion. It was unavailing that the attorney who drafted the will and her secretary testified that the testator appeared to be mentally competent. Nor did it aid the proponent of the will that the testator’s physician signed a letter shortly before the will was signed stating that the testator was “totally intact” mentally. The Court noted that the testator’s physician, a primary care doctor, drew his conclusions based on his personal interaction with the testator, rather than on any formal cognitive testing.
Invalidating a will on grounds of lack of capacity is quite rare in Massachusetts, which has established a very low threshold for capacity to make a will. Significantly, Adler suggests that Massachusetts courts would be receptive to the argument that a testator suffering from as yet undiagnosed Alzheimer’s may not have had capacity to make a will (or deed over real property), even though there is no testimony questioning capacity at the specific time the will is being executed. This represents a significant departure from the traditional rule that as long as the testator had a “lucid moment” at the time of the execution of the will, the standard for capacity has been met.
The Court also held there was ample evidence that the testator’s son exercised undue influence over his mother in obtaining execution of a series of wills and codicils, each one further benefitting him at his sister’s expense. In Adler, the Court recognized that the son had the opportunity to exercise undue influence (he worked out of his mother’s home), while his mother’s precarious mental status made her susceptible to such influence. Because the son was his mother’s fiduciary (her agent under a power of attorney, as well as her financial advisor), he had the burden of proving that the estate planning changes had not come about as the result of his undue influence—a burden too heavy to sustain given the evidence of his campaign to undermine with his mother’s relationship with her daughter.
The Adler decision is significant not only for the capacity and undue influence rulings, but also in the Court’s resolution of the procedural questions that arise when a number of wills are at issue. This is a point on which there is virtually no appellate guidance. In this case, the Court found it to be an appropriate exercise of the probate court’s equity powers to not just disallow the 2001 will offered for probate, but also to allow a 1997 will (which provided for 50/50 split of assets between the testator’s children), notwithstanding the fact that two intervening instruments (a will and a codicil) had also been executed. Adler therefore offers some guidance to practitioners concerning the probate court’s flexibility when determining which instrument should govern when among multiple estate planning documents have been executed.