Medical, cognitive, psychiatric or mental incompetence of the testator

The rule of thumb is that any person is entitled to rights and duties following his birth and until his death, and any person is competent to perform legal actions including the making of a will unless this competence was denied or limited by law or following a court judgment, as specified in Sections 1 and 2 of the Legal Capacity and Guardianship Law, 5722-1962.

Section 26 of the Inheritance Law prescribes as follows:

“A will made by a minor or anyone declared as legally incompetent or made at the time that the testator was not capable of telling the nature of the will – is null and void.”

The status of a minor or legal incompetence results in invalidation of the will, even if the minor and/or the legally incompetent person can distinguish the nature of the will. The purpose of this Section is to protect a minor and/or a legally incompetent person from mistaken considerations deriving from pressure and undue influence.

Case law precedent developed the criteria to determine whether a person is competent to testate (Civil Appeal 160/80 Bendel v. Bendel HCJ Rulings 35(3) 101):

  1. A.    The testator’s capacity to understand the nature of the will;
  2. B.     The testator’s awareness to the fact that he makes a will;
  3. C.    His knowledge about the extent of his property and the inheritors’ identity;
  4. D.    His awareness of the impact the will have on his inheritors;

 

“The most important aspect is the capacity of a person to adequately judge his surroundings, his ability to establish intent and will; and finally his ability and capacity to direct his conduct according to that reality and according to that intent and will. Competence shall be limited where a person’s judgment is diminished to such degree that society sees a need to protect that person against himself – against his actions and omissions stemming from faulty judgment of reality and against other people, who may take advantage of his weak mind and faulty judgment” (Beanstock Judgment, Honorable Justice Cheshin).

Judgment further determined that the testator has to be of sound mind and interpret correctly his surroundings, when his mind is free from pressure, delusions and illusions.

“It is a case law, and a case law that is relevant in the matter at hand – that delusions are not grounded in reality. However, if there is any evidence and even the weakest piece of evidence that may lead to a thought about the existence of any reality, we shall not consider these thoughts as delusions.” See Civil Appeal 1212/91 Libi (ibid).

 

The importance of time in the context incompetence: in order to prove claims concerning mental and physical condition medical or other opinion should be provided, according to which the party objecting to the will has to prove that the testator was unable to tell the nature of the will. The evidence should also relate to the time of making the will. Therefore, a will made at the time the testator was able to tell its nature will be valid even if this ability was taken from the testator at a later time, and even if it was proven that before making the will he was unable to discern its nature.

This becomes even more complicated at the onset of diseases such as Alzheimer’s disease or dementia – case law determined that where an anonymous person suffered from moments or even periods wherein his mind was not lucid, then if it was proved that he was lucid at the time of making the will, all the more so at the time of actually writing the will, then the court may, and should rule that the anonymous person “was capable of distinguishing the nature of the will” he made.

A party objecting to the execution of the will must prove that the deceased failed to meet the aforementioned criteria at the time of making the will and therefore was incompetent to draft a will.

The common (however not the only) way to prove that the will was written when the deceased was medically, mentally, or cognitively incompetent is to rely on the deceased’s medical history and order the deceased’s medical files from hospitals, doctors, National Insurance Institute, and any other entity that provided care to the deceased.

After gathering all evidence and reviewing all the testator’s medical documentation or any other medical evidence, an expert’s opinion should be made (for example, a psychiatrist, a neurologist or a psychogeriatric doctor) who will determine whether the testator was medically, mentally, and cognitively competent to sign a will.

If the expert determines that the testator’s judgment was flawed at the time of making the will, for example if the testator suffered from Alzheimer’s disease, dementia, impaired memory, disorientation of time and place or impaired soundness deriving from sleep-inducing or numbing drugs and any other impairment of consciousness, reality perception or memory, it is likely to assume that the court will instruct that the testator was legally incompetent and revoke the will, since in such circumstances the deceased is not considered a testator who made a will out of his own free will and resolve.

 

Since the deceased is not present when such claims are heard, the court will allow relying on the deceased’s medical documents. In order to obtain the deceased’s medical documentation a claim should be submitted to remove the deceased’s medical records privacy in the relevant medical institutes.

If the court is convinced that there is justification to remove privacy from medical records it will issue an order instructing medical institutions to deliver the deceased’s medical records to the parties’ review.

In many cases, following a review of the deceased’s medical records, we discover evidence and clues that the deceased was incompetent at the time of making the will, mostly due to cognitive damage deriving from geriatric conditions such as Alzheimer’s or dementia, however also due to mental diseases or disorientation deriving from medications the deceased took.

 

Medical documentation in itself does not suffice to declare the deceased as incompetent to make a will. The court is not a doctor and does not aspire to interpret the meaning of medical documents presented before it. Therefore, another important stage is the preparation of an expert’s opinion, usually a geriatric doctor, psychiatrist, neurologist or another doctor who will be requested by the court the prepare an expert opinion in the framework of which he will give his opinion whether the deceased was competent to make a will at the time of its making.

 

The complexity of an expert’s opinion on the testator’s medical and cognitive condition

The procedure of will revocation that is accomplished by filing an objection to execute a will,  is one of the most complex proceedings in the Israeli legal system since during this proceeding the court is required to determine what the deceased’s genuine will was, without being able to receive the testator’s testimony.

The first question that is asked: if the testator was incompetent to make a will, was there evidence concerning this situation during his lifetime?

Negating the capacity to testate, and especially ex post facto, from a person in whose lifetime there were no doubts about his ability to do so, is not a simple matter, and the burden for contradicting this basic presumption of competence after a person’s death is significantly heavy. It was already ruled that:

“Raising mere doubts is insufficient to meet the burden of proof that lies with the party claiming that a testator was incompetent …” (Civil Appeal 279/87 Rubinowitz v. Kreizel [4] p. 762).

 

For example, declaring that a person was the “mental patient” after his death without being examined by a psychiatrist during his lifetime but while relying on testimonies of people who are not professionals or even while relying on psychiatric opinions that were given post mortem is not an easy task.

The burden of evidence that lies with a person who claims that a person who died was a mental patient while that person can no longer be examined is, as said, significantly heavy.

Interrogating witnesses and reviewing documents for the purpose of establishing the testator’s competence:

An opinion that is based upon the deceased’s medical records is insufficient since it is not based upon a direct examination of the testator. Therefore, such an opinion constitutes only part of the totality of evidence that can be presented before the court for the purpose of demonstrating the testator’s faulty cognitive condition.

To the totality of evidence in respect of the testator’s competence we may also add testimonies of persons who were in the deceased’s surroundings shortly before making the will and certainly the testimony of the person who made the will, drafted it or took part in its making.

We may also learn about the testator’s functioning and competence from witnesses who knew the testator during his lifetime such as relatives, friends and acquaintances, neighbors and caregivers, and even doctors who would testify under oath about his condition (as witnesses and not as experts).

Even letters or handwritten documents that were proven to have been made by the deceased at the relevant time of the will or at about that time can constitute, under certain circumstances, evidence in court attesting to the testator’s competence, whether in terms of the form or style of writing – depending on circumstances.

Expert’s testimony.

 

Review of the language of the will for the purpose of establishing the testator’s competence

Even when reading the language of the will we can learn and receive evidence as to the testator’s competence – the language of the will can demonstrate the extent in which the testator was aware of the circumstances of his life, the names and identity of his family members and inheritors, the size of his property, the fact that he excludes/deprives an inheritor from his will, and even the testator’s sense of reality.

See the words of the Honorable Justice Shaul Shohet in Estate Case 010910/99 in the Tel Aviv Family Court:

“However, the language of the will, a short will in the case under discussion – consisting of a very limited description of the scope of the deceased’s property and refers only to the Plaintiff, the deceased’s daughter who receives the entire estate while the deceased’s other children (in respect of whom even the Plaintiff does not claim that the deceased did maintain connections with any of them) are not referred to in the will at all – raises doubts in itself. Doubts that from the early stages of the proceeding before me fell under the category of “considerations” and nothing else, however now, as I come to the end of the road, and wanting to know where I am and where my doubts are, and I find myself still with doubts.”

The burden of proof concerning incompetence:

The burden of proof for the purpose of proving that the testator was incompetent lies with a party wishing to benefit from the will, that is to say, the party claiming that the testator lacked judgment. The burden of proof is not a mere trifle and for the purpose of meeting this burden raising mere doubts is insufficient.

Today, in light of Basic Law: Human Dignity and Liberty, negating one’s competence to testate, and especially ex post facto, from a person whose competence was not contested during his lifetime, is not a simple matter so that the burden to contradict the basic presumption of competence, after a person’s death, is significantly heavy – however possible by conducting thorough research of all relevant evidence, and using all procedural remedies set forth by law.

Preventive measures to declare incompetence already during the testator’s lifetime

If you want to prove that already in your lifetime you were competent at the time of making your will, and especially if there is a concern that there is a doubt as to your competence after your death, or that any entity may request revocation of your will, I would recommend taking the following actions:

  1. Schedule a meeting with a medical expert, specializing in the medical condition relevant to your condition who will prepare a medical opinion about your condition at the relevant time you make your will.
  2. Document the making of the will using a video camera (medical examination can also be documented with a video camera).
  3. Sign the will’s witnesses on an affidavit stating the circumstances of making the will.
  4. Specify in your will and even in a separate affidavit prepared on the date of the will the circumstances of making your will.
  5. Receive legal and medical consultation that is relevant to your special condition and your special life circumstances.

 

Leave a Reply

Your email address will not be published. Required fields are marked *

*