The growing number of older Americans, the prevalence of cognitive impairment associated with aging, the concentration of wealth among older adults, and the complexity of modern families are likely to lead to an increase in wills and trust conflicts, leading to allegations of lack of testamentary capacity and undue influence (UI). The person does not have sufficient mental faculties to (A) understand the nature of the testamentary instrument, (B) understand and remember the nature and location of his or her property, or (C) understand the person`s relationship with his or her descendants, living spouses and relatives and those whose interests are affected by the will, to remember and understand. 32. There is a clear difference between the ability to understand [deserts of objects of one`s own generosity] and their actual comprehensibility. The results of the study led to changes in California law: California Assembly Bill 140 (AB 140) 16,17 created two new code sections, one in the Welfare and Institutions Code (WIC, Section 15610.70) and the other in the Estate Code (Section 86) to clarify the law governing unemployment insurance in California and applicable to testamentary instruments and other matters. as well as conservatories.18 In addition, the bill amended an existing section of the WIC (15610.30) to apply the new UI clarification to elder abuse. The new clarification entered into force on 1 January 2014. Section 15610.70 of the WIC now reads as follows: a. “Undue influence” means excessive persuasion that causes another person to act or refrain from acting by overcoming his or her agency and leading to injustice. In determining whether a result has been achieved by undue influence, all of the following points shall be taken into account:1. The vulnerability of the victim.
Evidence of vulnerability may include, but is not limited to, disability, illness, disability, injury, age, education, cognitive dysfunction, emotional distress, isolation or dependence, and whether the influencer knew or should have known about the alleged victim`s vulnerability.2. The apparent authority of the influencer. Evidence of apparent authority may include, but is not limited to, fiduciary, family member, caregiver, health professional, legal professional, spiritual advisor, expert or other qualification.3. The actions or tactics used by the influencer. Evidence of actions or tactics used may include, but is not limited to: A. Control of the necessities of life, medications, victims` interactions with others, access to information or sleep.B. Use of affection, intimidation or coercion. Initiate changes in personality or property rights, apply haste or secrecy in making such changes, make changes at inappropriate times and places, and claim expertise to make changes.4. The fairness of the result. Evidence of fairness of outcome may include, but is not limited to, the economic consequences for the victim, any deviation from the victim`s intent or previous behaviour, the relationship between the value transferred and the value of the services or consideration received, or the appropriateness of the change given the duration and nature of the relationship. Proof of an unequal result is not automatically sufficient to prove undue influence [Ref. 14].
From 2005 to 2008, the American Bar Association Commission on Law and Aging and the American Psychological Association jointly published three manuals, one for lawyers, one for judges and one for psychologists. The Handbook for Psychologists, Assessment of Older Adults with Reduced Capacity: A Handbook for Psychologists,21 is ambitious in its recommendations and encourages the consulting psychologist to cover a wide range of topics. For example, in cases where family members may take opposing positions, the manual states that “it is the role of the clinician to determine the motivations of the family members involved in the case and the impact on collateral data” (Ref. 21, p. 43). With respect to unemployment insurance, the manual states: “Although psychologists are primarily asked to assess older victims, knowledge of the alleged influencer may be useful in determining the potential presence of undue influence” (ref. 21, p. 117). A case study includes findings about the alleged influencer`s state of mind, factual events related to the transfer of assets to accounts, and even clinical treatment recommendations for the apparent victim (Ref. 21, p. 120). Nevertheless, it states that “when reporting clinical findings and judgments, the clinician must be careful not to infringe on the jurisdiction of the court and to clearly mark his or her decision and conclusions as clinical and devoid of legal capacity” (Ref.
21, p. 44). The UI claim is reinforced by a number of factors that are widely considered to be “circumstantial evidence” of UI (i.e., they serve to strengthen an UI claim, but are not in themselves a presumption). These have (in the past) contained unnatural provisions in the will, provisions incompatible with previous or subsequent expressions of the testator`s intentions, the existence of a relationship between the testator and the beneficiary that creates an opportunity to control the act of the will, and evidence that the victim was mentally “weak”. While a diagnosis of mental illness or developmental disorder is generally sufficient to support an allegation of “mental weakness,” UI may apply even if the victim does not have a mental disorder or psychological “defect.” In some cases, it is sufficient to prove that the proposed victim is passive or prone to manipulation.9 Experience with cults reminds us that anyone, regardless of their mental state, can become a victim of unemployment insurance under the right circumstances. The new wording of California`s WIC and Probate Code, which defines unemployment insurance and identifies factors that courts must consider when deciding unemployment insurance cases, has influenced this review of the role of the MHP and has informed our proposed recommendations for the conduct of the MHP based on generally accepted standards for expert testimony. In particular, we recommend a gradient for MHP expert articles on undue influence: MHPs have the most to say about objective #1 (victim vulnerability), with less to say about #2 (the influencer`s obvious authority) then #3 (the influencer`s actions) and nothing about #4 (the fairness of the outcome). There is no a priori reason to allow freedom of legalization. The existence of laws on parentage and distribution shows that the State is fully capable of disposing of property after the death of its owner.
This article does not examine the many arguments for and against testamentary freedom. In practice, although courts admit wills as evidence in cases of testamentary capacity, they rarely examine a disposition of a will in the abstract without also assessing other evidence of the testator`s experiences and beliefs. Some courts apply a seemingly objective standard for assessing mental capacity, a standard that refers to the testator`s abstract capacity for “reason.” However, in determining whether the testator has actually carried out the necessary process of argumentation, the decisive factor is not whether the provisions of the will are rational in an abstract sense, but whether they are in accordance with what might have been expected of a testator. Other courts directly reach the same conclusion by explicitly defining legal capacity as a correspondence with a testator`s particular and individual beliefs and concerns. In all cases, the fact-finding investigator is therefore effectively obliged to empathize with the testator. Some authors have focused on expert subjectivity and bias in probate proceedings,27 a common theme in criminal proceedings.28 A recent article focused on possible bias in judicial decision-making regarding the sex of the testator and judge.29 Moye and Marson noted that “capacity assessments are ultimately human judgments made in a social context take place” (Ref. 30, p. 95).
In order to minimize subjectivity and bias, the development of assessment tools is often necessary. A recent review of the broad field of capacity assessment focuses less on UI and more on “capacity science” (ref. 31, p. 159), noting that “capacity issues now permeate the fabric of daily life, whether in the form of guardianship applications, questions of capacity to consent to treatment, capacity to make a new will, or participation in research involving human subjects” (ref. 31, p. 158). It should be noted that there is currently no empirical validation for an instrument that measures UI or vulnerability to UI. Similarly, there is no known brain region associated with susceptibility to UI.
13. In general, “he who is able can make good will, although the terms Book Review, 59 MICH. 806, 810 (1961) (Revision by W. MacDonald, Fraud The Determinants of a Will in a Competition Based on Will Incapacity, 2 The key for the expert is to understand the mind of the victim in the context of the relationship.
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