Testamentary incapacity, undue influence, and insane delusions.
Testamentary incapacity, undue influence, and insane delusions are recurring doctrines in the context of an impaired, weakened, or confused individual leaving a will, the validity of which comes under question. In the case of In re Estate of Berg the South Dakota Supreme Court, in 2010, held that an individual possessed testamentary capacity even where he suffered a static lifelong delusion about the identity of his father and was unable to articulate an accurate estimate of his net worth. This article uses Berg as a means of framing the requirements of a valid Last Will and Testament along with the theories under which a will may be set aside, with special emphasis given to the doctrines of insane delusions and undue influence. The author offers an analysis of the holdings and outcome in Berg along with related cases and authority in context. Berg, the author concludes, was correctly decided, its reasoning squaring with longstanding deference towards the freedom of testamentary disposition, even for individuals with diminished capacity and mental delusions.
I. INTRODUCTION II. DISCUSSION A. WILL [IN]VALIDITY 1. Testamentary Incapacity a. Nature and Extent of One's Property b. Natural Objects of One's Bounty c. Disposition One Wishes to Make 2. Insane Delusions a. Irrational Belief b. Not Susceptible to Correction c. Affecting a Bequest: Causation 3. Undue Influence a. Testator's Susceptibility b. Wrongdoer's Opportunity to Influence c. Disposition of Wrongdoer to do Wrong d. Results of the Influence: Causation 4. Other Roadblocks to Will Validity (or Theories for the Will Contestant) a. Fraud: Intentional Trickery and Deception b. Duress: Amped-up Undue Influence c. Tortious Interference with an Expectancy: A Nascent Tort Theory 5. The Uncertain Status of Mistakes B. ESTATE OF BERG: AN ILLUSTRATION OF FREEDOM OF DISPOSITION 1. The Facts and Background 2. The Procedure and Trial 3. The Opinion and its Quiet Legacy C. READING AND ASSESSING BERG III. CONCLUSION
In the case of In re Estate of Berg, (1) the South Dakota Supreme Court upheld the validity of a will executed by Fred Berg, an individual under a conservatorship who suffered from numerous delusions and who had been unable to live independently for most of his adult life. Fred Berg's will left his estate to his nephew Roger to the exclusion of Fred's siblings and their descendants. (2) Following a three-day trial, at which a recognized psychiatrist offered his forensic opinion that Fred was thought disordered and psychotic on the date the will was made, the Honorable Jerome Eckrich held that Fred possessed testamentary capacity and that his will was not the product of undue influence. (3)
Capacity to make a will depends on the individual being capable of identifying the "natural objects of their bounty" and both the nature and extent of their property. (4) Fred believed that his father was either the television and movie actor Fred MacMurray or a non-existent German man. (5) He had also, at some periods in the past, claimed several other non-existent relatives: a sister Hattie, a brother Charles, a niece Murtle, and a "common-law-son" Eugene. (6) Moreover, Fred indicated that his net worth was $100,000, while in fact it was five times that amount. (7) Nevertheless, the South Dakota Supreme Court upheld the will.
The following discussion assesses will validity primarily through the lens of South Dakota law, although case law from other jurisdictions is also considered. The article's observation and conclusions have import on a wider scale than South Dakota as will validity doctrines share more commonalities than dissimilarities across the country. Forgery--where the testator (8) has not herself signed her will--has been omitted from this article. (9) The discussion excludes considerations of whether an otherwise valid will has been revoked either by the testator's acts or by operation of law due to certain categories of changed circumstances such as marriage. (10) The discussion ignores the operation of the slayer rule, which functions to override an otherwise valid bequest when the devisee kills the testator. (11) The discussion bypasses ethical issues present when the drafting attorney improperly benefits as a devisee. (12) The discussion omits an analysis of creditor claims or elective share petitions both of which can also defeat the operation of a valid will, in whole or in part. (13) Nor are pre-mortem will challenges explored. (14) Finally, I do not include the problem of nonprobate asset transfers such as accounts titled with rights of survivorship or governed by a beneficiary designation, even where the vesting of those rights may be contrary to the provisions of a will. (15) Instead, the following discussion centers on the validity, invalidity, or, in some cases, the partial invalidity, of a will. (16)
As an additional threshold matter, it should be noted that the tests for capacity vary across different contexts. An individual's legal capacity to execute a deed or enter into marriage are assessed differently than the capacity to make a will. (18) An individual may qualify for the protection offered by a conservatorship yet still retain the ability to make a will. (19) Arguably, the capacity test for entering into a revocable trust agreement is different than the capacity test to make a will or to designate beneficiaries on a policy of life insurance even though all have similar testamentary objectives and outcomes. (20) The capacity to make a lifetime gift is assessed under a different standard than the ability to make a will, and the capacity to make an irrevocable lifetime gift may vary with the form or content of the gift. (21) The confusing array of capacity tests rests on the recognition that different legal acts or decisions depend on assessments of capacity particular to the act or decision in question. (2) In the discussion which follows, however, testamentary capacity will be considered in isolation.
There are several different avenues by which the operation of a will may be frustrated as highlighted above. In this article, I focus on the threshold issue of testamentary capacity along with two additional doctrines by which a will can be held invalid once testamentary capacity has been established: insane delusions and undue influence. Situating these doctrines in relation to one another can be helpful in developing an understanding of the precise contours and limits of each legal concept. The doctrine of insane delusions in particular has often suffered from conflation with the related but independent question of testamentary capacity.
Testamentary capacity precedes an analysis of either undue influence or insane delusions; it considers whether the individual had the capacity to understand the nature and extent of his property, to know the natural objects of his bounty, and to form an intent regarding the disposition of his property at death. The related but distinct doctrine of insane delusions asks whether an irrational delusion affected certain provisions of an otherwise valid will. The doctrine of undue influence considers whether one or more provisions of a will should fail on account of a wrongdoer's interference with the testator's estate plan.
A. Will [In]validity
Testamentary capacity focuses exclusively on an individual's mental faculties and ability to form a meaningful understanding of the relevant aspects of the environment. The individual's internal mental state is the sole issue. The individual is viewed in isolation with an eye towards determining whether she possessed the minimal mental abilities to form an intent to make a testamentary gift. The assessment of whether an individual possessed either testamentary capacity or incapacity is thus a gatekeeping function, but the outcome of the assessment is never entirely separated from the assessment itself: if the individual had testamentary capacity, the will instrument operates on her estate, but if an individual lacked testamentary capacity, then her estate will be distributed under the dictates of intestacy. Intestacy is a disfavored outcome, and so, accordingly, is an assessment that an individual lacked testamentary capacity. (23) Because the outcome of intestacy is undesirable, so too is a determination of incapacity. Thus, the law favors a finding of capacity because it disfavors the alternative outcome.
Only after it has been determined that an individual had testamentary capacity will the doctrines of insane delusions and undue influence have any possibility of operating. An individual lacking capacity can never be subject to an insane delusion or undue influence because those doctrines describe invalidating circumstances on all, or portions, of an otherwise valid will; the doctrines of insane delusions and undue influence apply to wills executed by a testator with capacity. This is a significant point that is easy to miss because many reported decisions which discuss testamentary capacity also consider undue influence or insane delusions in the alternative, often allow the doctrines to overlap. (24) Some authority even muddily proclaims that "[a] person having an insane delusion is incompetent to make a will," erroneously collapsing insane delusions into considerations of capacity.
All three doctrines--testamentary incapacity, insane delusions, and undue influence--require a careful consideration of the individual's state of mind, so a bleeding at the edges of the doctrines of incapacity and insane delusions in particular is not surprising. (26) Incapacity and insane delusions are especially at risk for improper blending when an irrational delusion interferes with an individual's ability to satisfy one or more of the requisites of testamentary capacity; where, for example, the individual is of limited financial means yet irrationally clings to the belief that he owns the Empire State Building. (27) Indeed, all three of the doctrines overlap to some degree as they all involve a consideration of the individual's mental state. Yet the doctrines of incapacity, undue influence and insane delusions are distinct and their distinguishing hallmarks are important and sometimes determinative of a correct judicial outcome.
For example, in In re Hargrove's Will, (28) a fairly typical case from New York, a decedent allegedly suffered from an "insane delusion" that his two children were born of a different father. (29) Decedent Hargrove possessed testamentary capacity because he could identify the natural objects of his bounty (his children) but harbored an insane delusion concerning the children's background (their parentage). (30) The same situation would be present if Hargrove could identify his spouse, but suffered an irrational delusion that she had been untrue to him or had divorced him years before. In either case, the testator can identify his family members (although suffering from a delusion concerning characteristics of those family members).
Thus, if Hargrove could also identify the nature and extent of his assets and the disposition he wished to make of them at death, he should qualify as having testamentary capacity. (31) The question would then--and only then--become whether he nevertheless suffered from an insane delusion. (32) In Hargrove's Will, the appellate court reversed the jury's verdict that "the testator suffered from an insane delusion that two children born to his wife during their marriage were not his" given that Hargrove exhibited no mental deficiencies and there existed some rational explanation for his delusion about his children's paternity. (33) His delusion, in other words, fell short of an insane delusion since the questioning of his children's parentage was not completely irrational under the circumstances.
The distinctions between incapacity and insane delusions are important since a finding of testamentary incapacity will cause the entire will to fail. Where there are several bequests but not all are tainted by the delusion, a finding of an insane delusion will only cause the affected portions of the will to fail. (34) In wills with a single residual bequest, the distinction will be meaningless in terms of outcome for there is only one dispositive provision at issue. But in other cases, distinguishing between the doctrines will allow the unaffected parts of a will to survive (and intestacy to be avoided, to that extent) as the law prefers. Counsel and courts should therefore be vigilant in distinguishing between the doctrines of incapacity and insane delusions and prefer a finding of insane delusion to a finding of testamentary incapacity since intestacy may, to a greater extent, be avoided and freedom of disposition honored. A finding of testamentary incapacity results in a greater berth of assets passing by intestacy than a more limited finding of insane delusion where a decedent's assets governed by unaffected provisions of the will may avoid intestacy and pass as intended.
The assessment of an individual's testamentary capacity takes place in a kind of abstract vacuum and considers the individual's ability to grasp their assets and family and express a testamentary plan. An insane delusion considers certain circumstances external to the testator's mental state. The factual focus widens when one moves from a consideration of testamentary incapacity to insane delusions. An insane delusion exists when a testator maintains an irrational belief which is not susceptible to correction and which affects a provision of his will. Because an element of an insane delusion is whether the belief was susceptible to correction, courts consider whether the testator was presented with evidence which would lead a reasonable person to reconsider their delusion in light of that evidence. (35)
For example, a testator (that is, an individual with testamentary capacity) may disinherit his youngest daughter out of a belief that she worships Satan. Of relevance to the question of whether the belief constitutes an insane delusion would be whether the testator had been presented with corrective evidence that his daughter was attending seminary and was, in fact, extremely devout. An insane delusion can be contrasted with testamentary incapacity insofar as an insane delusion assertion will require consideration of external circumstances: the introduction of refuting evidence for the testator's consideration and the testator's response to it. If, in this example, the testator's belief that his daughter worshipped Satan was wholly unfounded, uncorrectable, and a symptom of a "diseased mind" which caused him to make his will in a certain way, the affected provisions would fail. (36) With testamentary incapacity, by contrast, the reasonableness or justification of an individual's inability to comprehend their assets and natural objects of their bounty should be irrelevant; the question is simply whether or not they possessed that ability, irrespective of etiology.
Undue influence (the third doctrine explored here in depth) also considers a testator's state of mind, and--to a greater degree than insane delusions--also considers external circumstances. Undue influence is best contrasted with both testamentary incapacity and insane delusions in that it includes a third party actor, a wrongdoer, an individual who intentionally exerted improper influence on the testator. (37) Undue influence involves a villain. When a wrongdoer's influence affects the provisions of the testator's will, undue influence is present and the affected provisions may be stricken. (38) Like insane delusions, any unaffected provisions of the will stand and intestacy, at least in part, can be avoided. Undue influence includes a consideration of the testator's state of mind, however, since typically only a testator in a weakened or dependent state can be susceptible to a wrongdoer's acts. (39) First, however, I will discuss testamentary incapacity.
1. Testamentary Incapacity
To make a will an individual must be of "sound mind" and at least eighteen years old. (40) South Dakota Codified Laws do not contain a definition of sound mind, but case law has defined the term as being capable, without prompting, "to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty, and the disposition that he desires to make of such property." (41) Thus, testamentary capacity rests on a three-part test which examines the testator's ability to conceptualize the aspects of her environment relative to forming a testamentary plan. (42) The test requires the testator to have the capacity to form an understanding of her assets, her family (or other individuals closest to her), and the disposition she wishes to make. Although some cases suggest that testators must have an accurate understanding of these basic facts, the more thoughtful judicial opinions simply require that the testators have the capacity or mental ability to know these things. (43) (Admittedly, the fact that an individual misapprehends her net worth by a significant margin is strong evidence tending to show that she lacks the ability to identify her assets, but it may simply demonstrate that she is inattentive or unconcerned with her holdings.) In addition, of course, a testator must have testamentary intent (44) and adhere to the formalities in executing a will demanded by law. (45)
The treatment of testamentary capacity has evolved over time as psychiatric understandings of cognition have deepened and the rights of individuals with disabilities have expanded. (46) The general trajectory in the law of wills is a liberalization of the requirements for both execution formalities of the will document and the state of mind of the individual making the will. (47) The execution formality requirements look to the qualification of the instrument itself; whether the document was properly executed and attested. (48) The underlying state of mind requirements of the testator speak to the eligibility of the testator himself to make a will; whether he was of sufficient age and mental capacity when the instrument was made (49) A third class of requirements for will validity considers the circumstances in which the instrument was made; whether the testator was under duress, was unduly influenced, was the victim of fraud, and so on.
In the relatively distant past, courts struggled with constructing a workable test for the "sound mind" requirement of testamentary capacity. (50) Some English courts required the testator to be perfectly sane or free from any mental illness. (51) Some courts have undoubtedly been prejudiced by a testator's eccentricities, but even cases from the nineteenth century take care to distinguish incapacity from eccentricity. (52) The oddest or most repugnant individual may possess testamentary capacity. (53) The early thinking of jurists' was "that 'idiots and persons of non-sane memory' should not make wills." (54) American courts have always held, however, that even "a person not perfectly sane might [have] sufficient mental capacity to make a will." (55) A person might attempt suicide yet still possess testamentary capacity. (56) An individual "may be possessed of delusions, and yet be capable of making a valid will...." (57) Individuals with Alzheimer's disease can have testamentary capacity. (58) For the past one or two hundred years, the test for testamentary capacity--while perhaps not its application--has remained relatively static. (59) The Restatement (Third) of Property--Wills and Other Donative Transfers articulates the test for testamentary capacity as follows:
[T]he testator or donor must be capable of knowing and understanding in a general way the nature and extent of his or her property, the natural objects of his or her bounty, and the disposition that he or she is making of that property, and must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property. (60)
South Dakota case law phrases the test somewhat differently from the Restatement and collapses its four-part test into a three-part test, holding that a testator has the capacity to make a will "if, without prompting, he is able to comprehend the nature and extent of his property, the persons who are the natural objects of his bounty and the disposition that he desires to make of such property." (61) Few if any cases seem to turn on the third element, since the disposition the testator desired to make of her property is presumably set forth in the instrument in question, yet the capacity to form a specific testamentary intention is clearly a prerequisite. (62) Indeed, testamentary intent is the theme underpinning the three primary doctrines considered in this article. (63) Testamentary capacity ultimately tries to get at the question of whether an individual was capable of forming testamentary intent. A testator suffering from an insane delusion or acting under undue influence can be said to have been thwarted in forming testamentary intent, despite their sufficient abilities, on account of interference from an irrational delusion or a wrongdoer's pressures.
The test for testamentary capacity in South Dakota case law is well established, as is the presumption in favor of capacity. (64) The proponent of a will does not bear the burden of establishing each element of the requirements for testamentary capacity (as the phrasing of the requirements might otherwise suggest). (65) Perhaps this is an overly technical point, but the phraseology of the test for testamentary capacity suggests that it is the will proponent who bears the burden of proving capacity. A more accurate phraseology might be to state that an individual seeking to establish a lack of testamentary capacity may do so by establishing by a preponderance of the evidence that the decedent was unable, without prompting, to comprehend the nature and extent of his property, the persons who were the natural objects of his bounty, or the disposition that he desired to make of such property. (66) But however the test is phrased, the three elements of property, family, and formation of a plan are each required; these three elements are separately considered below. (67)
a. Nature and Extent of One's Property
First, to possess testamentary capacity, an individual must be capable of understanding the nature and extent of her property. The requirement that an individual possess the ability to understand both the nature and the extent of her property before making a will is actually a two-part requirement insofar as the nature of one's property can be distinguished from its extent. (68) The nature of property relates to the type of property owned, whether realty, fixtures, cash, accounts, receivables, personal property, leases, trademarks, goodwill, commercial paper, or intangibles. The extent of property relates to the value or quantity held: how much cash, how many acres, or the number of shares or bonds. (69)
Only a general understanding of one's property is required. (70) In fact, capacity is correctly assessed by asking whether the individual had the ability to understand their property; the accuracy of that understanding is only relevant insofar as greater error tends to show impaired mental abilities. The gatekeeping function of assessing an individual's testamentary capacity is achieved by weeding out only those persons who truly lack the ability to conceptualize what they own. (71) If one is unable to conceptualize what one owns, it follows that one lacks the ability to form testamentary intent with regard to one's estate.
b. Natural Objects of One's Bounty
Second, to possess testamentary capacity, an individual must be capable of identifying the natural objects of his bounty. In the case of Estate of Hastings, for example, a will was set aside based on testimony that when asked about his relatives, the individual would not give direct responses, but merely smile and turn to his brother. (72) Although black letter law holds that for an individual to have testamentary capacity he must have the ability to identify the natural objects of his bounty, courts across the country have struggled with a workable definition for "natural objects of one's bounty." Some courts have defined "natural objects of one's bounty" objectively by strict reference to one's heirs in intestacy. (73) Others have adopted a more subjective analysis and consider who might stand in closest relation to the individual, taking account of their particular friendships and attachments. In South Dakota, no single definition has been articulated. (74)
The "natural objects of one's bounty" element of testamentary capacity first requires the court to determine who the natural objects of the decedent's bounty were before proceeding to an assessment of whether the decedent was capable of identifying those persons. Thus, hidden within this element are two subparts. Rigidly applying an objective inquiry into whether the decedent could identify the individuals who would succeed to his estate in intestacy fails to properly account for those individuals with only remote family members or collateral heirs such as dozens of nieces and nephews that the decedent hardly knew. A rigid intestacy identification inquiry also misfires when applied to an individual with close friendships and relations with non-kin.
Take, for example, an unmarried and childless gay man in a long-term relationship who makes a will leaving his estate to his mother after sustaining a debilitating traumatic brain injury in a car accident. If an objective natural objects inquiry reveals that the man could identify his parents, even though, on account of his brain injury he could no longer recall or identify his partner, a finding of testamentary capacity would follow. A "natural objects" inquiry which simply referenced intestacy statutes would result in a finding of capacity since the man could identify his intestate heirs (his parents) despite the man having lost the ability to identify the single most important person in his life, his same-sex partner. A less rigid application of the prong would reach the more sensible outcome of finding testamentary incapacity. This illustration reveals that framing the identity of the natural objects of one's bounty--before inquiring into the testator's ability to identify them--can itself present a challenging inquiry for the fact-finder in a will contest case. The only real guidepost in conducting this inquiry is to ask which individuals can be fairly said to have constituted the most "natural" successors to the decedent's bounty and "natural" is an imprecise and potentially value-ridden term. (75)
Undue influence cases occasionally examine the "unnaturalness" of a testamentary disposition. (76) So-called unnatural bequests are one factor which tend to show the operation and effect of undue influence on a testator. In assessing whether an unnatural bequest supports a claim of undue influence, courts consider whether the testator's will benefitted the natural objects of his bounty. (77) In that context, the South Dakota Supreme Court has held that a decedent's twenty-seven nieces and nephews constituting his heirs at law "because of such relationship alone, are not the natural objects of his bounty." (78) Similarly, in Hamm's Estate, where a testator's son was dead, his wife had been accused of being involved in the son's murder, other distant relatives had no contact with the testator for years, and the nursing home which received a bequest had provided the testator with "comfort and ease", the will was "not so unnatural as to be important[.]" (79) Determining what constitutes an unnatural disposition in the context of undue influence may be as difficult as defining the natural objects of one's bounty in an assessment of testamentary capacity. (80)
c. Disposition One Wishes to Make
The third prong of the test for testamentary capacity--that one must have formed an intent of how to dispose of their property at death--while axiomatic, proves difficult to illustrate with reported decisions. The reason for the lack of cases that turn on the presence or absence of this element lies in the fact that the testamentary plan itself is always contained within the testamentary instrument under challenge. (81) The will, essentially, speaks for itself in this regard. (82)
2. Insane Delusions
An individual with testamentary capacity may nevertheless have her will (or certain provisions of it) set aside on account of an insane delusion. An insane delusion is a wholly irrational belief that the testator adheres to and which affects dispositions in a will. To establish an insane delusion, some courts also require proof that the testator adhered to the irrational belief despite being presented with
evidence to the contrary which would have changed a reasonable person's mind; that the testator's beliefs were unsuccessfully challenged during his lifetime. (85) If particular provisions of a will are affected by specific beliefs unsupported by any rational explanation, those provisions will fail. (86) The unaffected provisions will remain since an insane delusion inquiry presumes an otherwise valid will executed by an individual with testamentary capacity. (87)
An insane delusion is not a mere mistake of fact, nor a mere eccentricity, it is a false belief not founded on reason. (88) If there is a rational basis for the belief it cannot be deemed an insane delusion. (89) And a delusion, even an irrational one, will not cause a bequest to fail unless it can also be shown that the delusion affected the will; causation, in other words, is a required element with insane delusions. (90)
Despite its name, which resonates with psychiatric trappings, an insane delusion is a legal concept rather than a scientific one. (91) An individual may suffer from a delusion that elephants are alien beings that are taking over the planet, or that the government has implanted listening devices in his brain. These are probable manifestations of mental illness or emotional disorders. In common parlance, classifying these kinds of beliefs as "insane delusions" might be acceptable. In terms of the assertion of a claim of an insane delusion which seeks to set aside a will (or parts thereof), causation, along with, in some jurisdictions, a showing that the delusion could not be corrected with evidence that would lead a reasonable person to re-examine the belief in question are required, even where the delusion is clearly symptomatic of a serious psychiatric malady. A delusion about elephants or a belief about governmental cranial conspiracies are not insane delusions if the will is unaffected. And they may not be insane delusions if unsuccessful efforts at correcting them cannot be shown.
In 2004, the South Dakota Supreme Court adopted North Dakota's description of insane delusions in Estate of Schnell:
An insane delusion is insanity upon a single subject. An insane delusion renders the person afflicted incapable of reasoning upon that particular subject. He assumes to believe that to be true which has no reasonable foundation in fact on which to base his belief. A person persistently believing supposed facts which have no real existence against all evidence and probability, and conducting himself upon the assumption of their existence, is so far as such facts are concerned, under an insane delusion. An insane delusion may exist even though there was some evidence from which the person afflicted might have formed his belief of judgment. It is a belief which is not based upon reasonable evidence, or at least without any evidence from which a sane man could draw the conclusion which form the delusion. (92)
Schnell represents South Dakota's first contemporary recognition of the doctrine of insane delusions. The Schnell opinion suggests that one element of insane delusions is that the testator was presented with evidence contradicting his irrational belief, yet still retained the belief. (93) Thus, the doctrine as adopted in South Dakota might be encapsulated as (1) an irrational belief without basis in fact; (2) which the testator adheres to despite compelling argument or evidence to the contrary; and (3) which affects certain provisions of a will. (94)
Considering whether an individual's will is a product of an insane delusion presumes testamentary capacity. (95) Stated another way, an insane delusion can be a legal issue only when it has first been determined that the testator had capacity. (96) A will contestant may establish that an individual with testamentary capacity nevertheless suffered from an insane delusion that affected the will, or certain portions of it, rendering those affecting provisions invalid.
For example, in a recent Georgia case, Odom v. Hughes, Louise Burton deeded her home to two of her three children and one grandchild, reserving a life estate. (98) She also executed a will leaving her estate to two children and another grandchild, again excluding her third child, Barbara Odom, because of a large loan from her that Barbara had failed to repay. (99) Later, Louise came to believe that her relatives had stolen her home. Even when presented with a copy of "the deed memorializing her transfer of the property to them" which showed this was not the case, she clung to the idea. (100) Her subsequent will left her entire estate to Barbara unless her other children re-conveyed their remainder interests in her home; the will was declared invalid by a jury on account of Louise's monomania (or insane delusion). (101) Louise's delusion was unfounded, uncorrectable, and caused her to make a will she would not have otherwise made and so the doctrine of insane delusions invalidated her otherwise valid will.
Insane delusions were first seemingly recognized by the South Dakota Supreme Court in Schnell in 2004, although the court failed to acknowledge a much earlier South Dakota case recognizing insane delusions. (102) In the 1912 decision of Irwin v. Lattin, Mary Bumgarner's will bequeathed her estate to the National Spiritualists' Association; five years later, she was institutionalized at the Hospital for the Insane in Yankton, South Dakota. (103) The trial court found that at the time of the execution of the purported will, Mary held the irrational belief that departed spirits were directing her to leave her estate to the Spiritualists' Association, and that she did so because of these beliefs. (104) Probate of the will was denied. The South Dakota Supreme Court affirmed, but took pains to distinguish between religious beliefs and communications from beyond the grave that impelled the testator and destroyed her free agency. (105) Ninety-two years passed before Schnell, the next reported South Dakota decision considering insane delusions. (106) In the eleven years since Schnell, insane delusions have been considered in just one other South Dakota reported decision, Estate of Berg. (107)
Considering reported decisions from other jurisdictions, the recognized elements of an insane delusion--(1) an irrational belief; (2) not susceptible to correction; (3) which affects a bequest--are briefly explored below. (108) While the elements of an insane delusion are straightforward, the challenging aspects of the doctrine lie in distinguishing an insane delusion from a mistake and also from testamentary incapacity. (109) The courts themselves often contribute to confusingly blending the doctrines, as will be seen below.
a. Irrational Belief
Not all delusions constitute insane delusions. The testator's delusion must be irrational (i.e., "insane") and in some way the product of a mental impairment, a "diseased mind," or mental illness. (110) In Russell v. Russell, (111) the testator left a holographic will which devised the majority of his estate to his daughter. His sons contested the will, claiming their father suffered from an insane delusion. (112) The testator's sons asserted that their father harbored an irrational belief that he had a property interest in a Nashville building, but in fact it had been awarded to his ex-wife in a divorce proceeding more than twenty years before. (113) The testator had no property interest in the building. The Tennessee court determined that although the testator's chances of claiming the property "might have been tenuous at best," his belief that he might be able to reclaim the building was not irrational. (114) Therefore, no insane delusion was present. The belief was unrealistic, but not irrational. (115)
Other courts reason that for a delusion to constitute an insane delusion, it must lack a basis in fact. In this way, an insane delusion can be distinguished from a mistake or error. (116) For example, in Heirs of Goza v. Estate of Potts, it was argued that insane delusions invalidated the testator's attempt to revoke his will. (117) The testator, a childless widower, had a will devising his estate to his wife as the primary beneficiary and her three siblings as contingent beneficiaries. (118) He later came to believe--falsely--that his wife had had a tryst with her sister's husband. (119) Angrily, he marked "void" over each paragraph of his will, wrote "bastard" and "get nothing" on it, applied Liquid Paper over the names of devisees, and later shredded the document in front of his two insurance agents. (120)
The Arkansas trial and appellate courts agreed that the revocation was effective since no insane delusion had been shown, reasoning that although the testator suffered from a delusional disorder, there was at least some basis in fact for the delusion in question. (121) His wife had dated her future brother-in-law years before and the two remained close. (122) Evidence clearly demonstrated that the testator "was an irascible, angry, suspicious, controlling, profane, and difficult man[.]" (123) The evidence did reveal, however, there was a factual basis on which he could have doubted his wife's fidelity. (124) Therefore, the revocation of the will was not overturned on the basis of an insane delusion.
b. Not Susceptible to Correction
In order to better distinguish a mistake from an insane delusion, some decisions emphasize the requirement that the delusion not be susceptible to correction by facts or evidence which would convince an ordinary person as to the falsity of their delusion. Some reported decisions also emphasize that the testator could not be reasoned out of her irrational belief. The Missouri Court of Appeals, in Dixon v. Webster, for example, reversed a jury verdict setting aside the will of Blanche Robinson based on her lack of capacity and, alternatively, an insane delusion. (125) Blanche suffered from dementia precox (or schizophrenia). (126) She came to the false conclusion that her original devisee, Richard Dixon, had stolen from her and proceeded to disinherit him. (127) But because there was no evidence that "anyone ever attempted to dissuade Blanche from her expressed, non-factual beliefs and that in consequence thereof, she persisted in them 'and refused to yield to either evidence or reason'" the Missouri court concluded that the testator was "laboring under a mere delusion" as opposed to an insane delusion. (128)
c. Affecting a Bequest: Causation
Finally, even where it can be proved that a testator suffered from an irrational, perhaps bizarre delusion rooted in a mental disorder, which is unfounded in fact and uncorrectable by evidence, the doctrine of insane delusions requires that the will (or part of it) be the product of the delusion before any part of the will is invalidated. (129) In the case, In re O'Neil's Estate, a divorced testator suffered from a fixed, irremovable "insane delusion of persecution" that one of his daughters was trying to poison him and that his other daughter was a prostitute. (130) His will, executed in March of 1947, less than a year before his death, disinherited them in favor of Ripton College, Wisconsin. (131) A Washington trial court concluded that by reason of the insane delusions, the testator had omitted his daughters and declared him intestate. (132) The appellate court reversed.
First, the testator's succession of wills suggested that he would have disinherited his daughters even in the absence of his delusions. (133) A prior will executed in 1920 had also disinherited the daughters in favor of Ripton College. (134) A will executed in 1938, when the testator and his daughters were on amicable terms, left his estate to his daughters. (135) A will executed in May of 1947 reinserted Ripton College. (136) The last will, later in 1947, while making certain revisions, continued to name Ripton College as the residual devisee. The succession of estate plans demonstrated an inclination to favor the college and disfavor the daughters prior to the manifestation of delusions.
Second, the court noted that the testator was an alumnus of Ripton College. (138) He held the school in high regard, had been educated for the ministry, and had even once contemplated going to China as a missionary. (139) His views of morality were strict and he was "a person of strong likes and dislikes." (140) He had little in common with his daughters. They had once "accused their father of an abnormal sex perversion, and", the court intoned, "it can well be inferred that this was never wholly forgiven." (141) When the daughter he had accursed of prostitution was divorced, the testator's conservative religious sensibilities were undoubtedly offended. (142) Based on these observations, the court concluded that the testator's delusions about his daughters were not "his guide in making his testamentary disposition" and upheld the will. (143) Causation, in other words, was lacking.
3. Undue Influence
Having considered testamentary incapacity and insane delusions, I turn now to the doctrine of undue influence. With both testamentary incapacity and insane delusions, the focus is directed to the testator's thinking and her ability to understand her environment. In the context of these two doctrines, the factfinder considers the testator's mental abilities and thought processes. With insane delusions, the factfinder will also consider the reasonableness of the testator's beliefs, whether attempts to correct the beliefs were unsuccessful, and the effects of the beliefs on specific provisions of the will in question. But under undue influence and other theories briefly discussed below (specifically duress (144) and fraud (145)), the lens of inquiry widens to take account of the actions and behavior of an alleged wrongdoer. (146) When a wrongdoer exerts influence over a testator which overcomes his free will and causes him to make a bequest he would not have otherwise made, the bequest is said to be the product of undue influence and void. (147) "The clarifying test of the matter ... is whether the testator's mind, when he made the will, was such that, had he expressed it, he would have said: 'This is not my wish, but I must do it.'" (148) Undue influence involves the overmastering of a testator's willpower. (149) When undue influence is shown, the testamentary intent of an otherwise competent testator has been effectively displaced by the wrongful influence of another person. With insane delusions, an irrational delusion displaces a testator's ability to form a coherent intent; with undue influence, a wrongdoer overcomes a testator's attempt to make his own testamentary plan.
Provisions of a will unaffected by improper influence on the part of a wrongdoer can remain intact since undue influence also presumes the testator possessed testamentary capacity. (150) The few cases which hold that the will must be an "entirety" and thus undue influence which renders one provision invalid renders all of the will ineffective are poorly reasoned. (151) In some respects, the doctrine of undue influence is a restatement of the requirement of testamentary intent for if the will reflects not the testator's intent but a wrongdoer's, the will should fail for lack of testamentary intent. (152) With undue influence, however, both coercion by a wrongdoer and causation must also be shown. (153) South Dakota distills the doctrine to four elements: "(1) decedent's susceptibility to undue influence; (2) opportunity to exert such influence and effect the wrongful purpose; (3) a disposition to do so for an improper purpose; and (4) a result clearly showing the effects of undue influence." (154) While characterized as "elements" a more precise phraseology might label them as "factors." (155)
Direct evidence of undue influence is frequently unavailable because the testator is (obviously) deceased, the wrongdoer cannot be expected to provide helpful testimony, and most acts of undue influence occur in a private setting where the only observers were the testator and the wrongdoer, one of whom is dead and the other uncooperative. (156) In response, the law has evolved a burden-shifting circumstantial evidence framework similar to those utilized in employment discrimination context. A presumption of undue influence can be generated by showing "a confidential relationship between the testator and a beneficiary who actively participates in preparation and execution of the will and unduly profits therefrom." (158) The degree of the testator's susceptibility is directly relevant to a claim of undue influence. (159) Thus again, four factual elements are typically required to establish the presumption: (1) testator susceptibility; (160) (2) a confidential relationship with the wrongdoer; (161) (3) active participation by the wrongdoer in the drafting and execution of the will; (162) and (4) "undue profits" under the will. (163) Once established, the burden of moving forward with the evidence shifts to the will proponent. (164) Care must be taken in relying on cases from jurisdictions other than South Dakota which hold that the effect of an undue influence presumption shifts the burden of proof, not just a burden of persuasion, or that undue influence is subjected to heightened standards of proof. (165)
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|Title Annotation:||Abstract into II. Discussion A. Will (In)validity 3. Undue Influence, p. 175-204|
|Author:||Simmons, Thomas E.|
|Publication:||South Dakota Law Review|
|Date:||Jun 22, 2015|
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