Susceptibility to Undue Influence: The Role of the Medical Expert in Estate Litigation

OBJECTIVES

Medical experts are increasingly asked to assist the courts with Will challenges based on the determination of testamentary capacity and potential undue influence. Unlike testamentary capacity, the determination of undue influence has been relatively neglected in the medical literature. We aim to improve the understanding of the medical expert role in providing the courts with an opinion on susceptibility to undue influence in estate litigation.

METHOD

Medical experts with experience in the assessment of testamentary capacity and susceptibility to undue influence collaborated with experienced estate litigators. The medical literature on undue influence was reviewed and integrated. The lawyers provided a historical background and a legal perspective on undue influence in estate litigation and the medical experts provided a clinical perspective on the determination of susceptibility to undue influence. Together, they provided recommendations for how the medical expert could best assist the court.

RESULTS

Susceptibility to undue influence is frequently used in estate litigation to challenge the validity of Wills and is defined as subversion of the testator's free will by an influencer, resulting in changes to the distribution of the estate. While a determination of undue influence includes the documentation of indicia or suspicious circumstances under which the Will was drafted and executed, medical experts should focus primarily on the susceptibility of the testator to undue influence. This susceptibility should be based on a consideration of cognitive function, psychiatric symptoms, physical and behavioural function, with evidence derived from the medical documentation, the medical examination, and the history.

CONCLUSIONS

The determination of undue influence is a legal one, but medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the testator's susceptibility to undue influence.

The last will: Estate divisions as a testament of to whom altruism is directed

We use data on estate divisions to study to whom altruistic preferences are directed. Insofar bequests are given without the prospect of future personal benefits in mind, they are presumably intrinsically motivated. Hence, estate divisions provide a rare opportunity to study intrinsically motivated prosocial behavior in the field. The empirical analysis is based on data from digitized estate reports for all individuals in Sweden who passed away in 2002 and 2003. The data show in detail how the decedents distributed their bequests. We find that family members, both genetic (offspring) and non-genetic (partner), receive the lion’s share of the estates. Other relatives, friends and strangers (represented by charities) receive only very small shares of the total estate wealth. The results suggest that intrinsically motivated altruism is primarily directed towards close family members.

Will-making in Irish nursing homes: Staff perspectives on testamentary capacity and undue influence

Allegations of lack of testamentary capacity or of undue influence are grounds for many disputed wills. Some people who make (or change an existing) will are resident in a nursing home. A substantial proportion of this population have cognitive or communication difficulties or are physically frail, and concerns regarding testamentary capacity or undue influence may be more likely to arise as a result. A questionnaire examining the experiences and views of staff regarding will-making by nursing home residents was posted to the Directors of Nursing of a random sample of 148 of the approximately 600 nursing homes in the Republic of Ireland and 81 responded. Over 10% of respondents reported seeing cases where they felt a resident who lacked capacity was visited by a solicitor or where a resident was placed under undue pressure to make or change a will or both. In most such cases, staff felt they could do little to intervene. In general, responses to the questionnaire suggested staff misunderstanding of the confidential nature of the relationship between a solicitor and a client and that respondents had an exaggerated view of the power and responsibility of doctors and of family members to influence residents' decisions and interactions with solicitors regarding will-making. This study suggests the need for improved Guidelines for staff regarding will-making in residential care including advice on how to proceed where concerns including undue pressure arise.

Reasoning About Cultural and Genetic Transmission: Developmental and Cross-Cultural Evidence From Peru, Fiji, and the United States on How People Make Inferences About Trait Transmission

Using samples from three diverse populations, we test evolutionary hypotheses regarding how people reason about the inheritance of various traits. First, we provide a framework for differentiat-ing the outputs of mechanisms that evolved for reasoning about variation within and between (a) biological taxa and (b) culturally evolved ethnic categories from (c) a broader set of beliefs and categories that are the outputs of structured learning mechanisms. Second, we describe the results of a modified "switched-at-birth" vignette study that we administered among children and adults in Puno (Peru), Yasawa (Fiji), and adults in the United States. This protocol permits us to study perceptions of prenatal and social transmission pathways for various traits and to differentiate the latter into vertical (i.e., parental) versus horizontal (i.e., peer) cultural influence. These lines of evidence suggest that people use all three mechanisms to reason about the distribution of traits in the population. Participants at all three sites develop expectations that morphological traits are under prenatal influence, and that belief traits are more culturally influenced. On the other hand, each population holds culturally specific beliefs about the degree of social influence on non-morphological traits and about the degree of vertical transmission-with only participants in the United States expecting parents to have much social influence over their children. We reinterpret people's differentiation of trait transmission pathways in light of humans' evolutionary history as a cultural species.

Gender bias and judicial decisions of undue influence in testamentary challenges

Allegations of undue influence constitute a common basis for contests of wills. Legal research from the 1990s suggests that gender bias factors significantly into judicial decision-making regarding alleged undue influence and testamentary intent. In this study, we sought to assess whether this bias is present today and to identify any factors that may be associated with it. Probate judges from several jurisdictions in the United States were asked to consider two hypothetical case vignettes drawn from actual published decisions. In our study, the gender of the testator played only a minor role in how judges weighed factors in the decision-making process and, overall, did not significantly influence opinions regarding the presence of undue influence. The specifics of the case and the gender of the judge emerged as the most consistent and robust potential influences on decision-making. Our results suggest that probate rulings involving undue influence are likely to represent a complex interaction of factors involving the testator's and judge's genders and the specifics of individual cases. The implications of these findings are discussed.

End-of-life planning activities: an integrated process

This study examined end-of-life planning and whether common characteristics predicted completion of these decisions. Participants in the Nebraska End-of-Life Survey were asked whether they had heard about or completed five plans: a health care power of attorney agreement, a living will, a last will and testament, funeral or burial preplanning, and organ and tissue donation. Logistic regression was used to identify predictors of these outcomes. Predictors of completing end-of-life plans, including funeral and burial preplanning, included older age, higher household income, and higher religiosity. This suggests that all of these decisions may be part of an integrated planning process at the end of life. Further, results from this study indicate that the role of religiosity, found in this study to predict both financial and health care planning, warrants further exploration.

The social stratification of older adults' preparations for end-of-life health care

I use data from the Wisconsin Longitudinal Study (n = 4,971) to evaluate the extent to which socioeconomic status affects three health-related (living will, durable power of attorney for health care, and discussions) and one financial (will) component of end-of-life planning. Net worth is positively associated with all four types of planning, after demographic, health, and psychological characteristics are controlled. Low rates of health-related planning among persons with low or negative assets are largely accounted for by the fact that they are less likely to execute a will, an action that triggers health-related preparations. Rates of health-related planning alone are higher among recently hospitalized persons, whereas financial planning only is more commonly done by homeowners and those with richer assets. The results suggest that economically advantaged persons engage in end-of-life planning as a two-pronged strategy entailing financial and health-related preparations. Implications for health policy, practice, and theory are discussed.

Investigating early modern Ottoman consumer culture in the light of Bursa probate inventories

This study investigates the development of early modern Ottoman consumer culture. In particular, the democratization of consumption, which is a significant indicator of the development of western consumer cultures, is examined in relation to Ottoman society. Sixteenth- and seventeenth-century probate inventories of the town of Bursa combined with literary and official sources are used in order to identify democratization of consumption and the macro conditions shaping this development. Findings demonstrate that commercialization, international trade, urbanization which created a fluid social structure, and the ability of the state to negotiate with guilds were possible contextual specificities which encouraged the democratization of consumption in the Bursa context.

The effect of ethnicity and economy upon intergenerational coresidence: northern Norway during the last part of the nineteenth century

During the last part of the nineteenth century, Finnmark province and the northern part of Troms experienced a decline in intergenerational coresidence. This article discusses what impact ethnic affiliation and economic activity had on the living arrangements of the elderly, and what contributed to the change. Logistic regression shows that ethnicity played a role but its effect disappears after controlling for economic activity. Intergenerational coresidence was positively associated with being a married Sámi male with an occupation in farming or combined fishing and farming. As such a person grew older, he was increasingly likely to live separately from an own adult child. This pattern changed toward the end of nineteenth century. By the close of the century, ethnic differences had disappeared, and headship position, irrespective of marital status, was strongly related to coresidence.

"Revolting to humanity": oversights, limitations, and complications of the English Legitimacy Act of 1926

This article analyses three areas that limited the effectiveness of the English Legitimacy Act of 1926. First, re-registration was public, expensive, and time-consuming. Second, the Treasury Office used the change in the law of intestacy to refuse more distant relatives' claims on estates. Third, the law separated legitimacy from nationality, thus denying citizenship to legitimated children born abroad of British fathers and foreign mothers. In short, both because of parliamentary oversights and civil servants' narrow interpretations of the law, relatively few children took advantage of the Act, and the minority who did, rather than being 'illegitimate' or 'legitimate', were a third category, the 'legitimated'.

Enduring love? Attitudes to family and inheritance law in England and Wales

This paper reports on the findings from a large-scale study of public attitudes to inheritance law, particularly the rules on intestacy. It argues that far from the assumption that the family' is in terminal decline, people in England and Wales still view their most important relationships, at least for the purposes of inheritance law, as centred on a narrow, nuclear family model. However, there is also widespread acceptance of re-partnering and cohabitation, producing generally high levels of support for including cohabitants in the intestacy rules and for ensuring that children from former relationships are protected. We argue that these views are underpinned by a continuing sense of responsibility to the members of one's nuclear family, arising from notions of sharing and commitment, dependency and support, and a sense of lineage.

Women's property rights and gendered policies: implications for women's long-term welfare in rural Tanzania

This paper evaluates effects of community-level women's property and inheritance rights on women's economic outcomes using a 13 year longitudinal panel from rural Tanzania. In the preferred model specification, inverse probability weighting is applied to a woman-level fixed effects model to control for individual-level time invariant heterogeneity and attrition. Results indicate that changes in women's property and inheritance rights are significantly associated with women's employment outside the home, self-employment and earnings. Results are not limited to sub-groups of marginalised women. Findings indicate lack of gender equity in sub-Saharan Africa may inhibit economic development for women and society as a whole.

Inheriting, marrying, and founding farms: women's place on the land

This article considers rural women's place on the land in south-central New York during the first half of the twentieth century. Based on a community history and ethnographic study conducted during the 1980s, the article draws on women's oral narratives to explore the connections between women's sense of agency and their relationship to the land through descent and inheritance, marriage into a landowning family, founding a farm in partnership, and the experience of dispossession.

Corresponding affections: emotional exchange among siblings in the Nassau family

This article examines the nature of emotional exchange among the siblings who were the children of William the Silent, leader of the nascent Dutch Republic. Using evidence from extensive familial correspondence, it asks how the language of emotions could constitute forms of power within the family, by analyzing how actions and expressions of emotion were presented, discussed, and interpreted in epistolary form, to whom, and with what intention and impact. The article studies social, geographic, linguistic, and other distinctions between siblings in their use of affective discourses in correspondence and argues that attention to affective language can help to elucidate the agentive force of emotions in both reflecting and informing notions of power within the family.

How to assess capacity to make a will

Much litigation in the United Kingdom and elsewhere could be avoided if doctors correctly assessed the capacity of a person to make a will. An old age psychiatrist and a solicitor explain how to assess capacity using legal tests

Common pitfalls in the evaluation of testamentary capacity

The examination for testamentary capacity poses several unique challenges to the forensic evaluator, especially when performed, as is often the case, postmortem. Forensic experience reveals that a series of common pitfalls awaits the unwary witness. This brief review identifies the more common pitfalls and suggests how to avoid them.

Wills and the district nurse: the importance of caution

John Williams is 65 years old, housebound and lives alone. He is widowed--his wife died 12 months ago--and he has 3 children. The eldest two are his stepchildren, Jack (40 years) and Bert (35 years). The youngest child is his biological daughter, Sarah, who is 28 years old. He has not seen his eldest children since his wife's funeral and Sarah has her own family and only visits occasionally. He is visited by Julie Davies, his district nurse on a daily basis due to a recent bout of flu from which he is finding it difficult to recover. He has early-onset Alzheimer's disease. Julie visits one day to find John in a very low, yet determined mood. He does not feel that he has long left in this life and has drafted a will which he would like Julie and the next door neighbour to witness. Julie notices that the will contains two bequests: one of pounds 5000 is to his neighbour; the second, to his stepson Jack, is of the remainder of his estate 'in full confidence that Jack will share it with the other children as he sees fit'. Julie does not want to get involved but feels pressurized by John into signing and witnessing the will. John dies a week later. Julie is notified that the will is being contested by Sarah.

Equal division of estates and the exchange motive

Although the bequest motive is one of the most important theoretical extensions of the life-cycle hypothesis, few empirical studies have measured determinants of unequal estate division. We estimated whether several proxies that are consistent with exchange and altruism lead to unequal estate division using data from a longitudinal survey of deceased elderly persons linked to probate court records. Equal division was the rule-between 70 and 83% of estates were divided equally, depending on the strictness of the definition of equal division. Several measures of exchange were not significant predictors of unequal division. Two factors that are consistent with both exchange and altruism- writing the last will and testament within five years of death and having more children-predict unequal estate division. The models control for selection, because many decedents do not file a record in probate court.

[The assessment of (in)competence to make a will]

Based upon German law and jurisdiction, psychiatric literature as well as the author's experiences, essential criteria for the assessment of testamentary capacity are presented, peculiarities of the posthumous assessment of psychopathology are explained and the anachronistic idea of the "lucid interval" is critically discussed. The legal term "freedom to determine one's will", decisive for the competence to contract and to make a will, corresponds to the psychopathological dimension of judgement. In the practice of experts' assessments, this criterion is most likely to be impaired by delusional misinterpretation of reality, lack of insight in being ill, pathological dominance of affects or suggestibility, while cognitive deficits are less often decisive. Using knowledgeably all available sources of information, a posthumous expert's statement on the legal ability to make a will is possible with the reliability legally required in more than 90 % of cases.

Older adults and financial bequests

Using data from Aging and Health Dynamics (AHEAD), this research investigated a model predicting an older adult's assessment regarding the chances (from 0 to 100) of leaving a financial bequest. Structural equation modeling analyses revealed three significant predictors of a high assessment (i.e., older age, high sense of control, and high socioeconomic status) and three predictors of a low assessment (i.e., race, physical health problems, and assessment of the chances of medical expenses depleting savings). Whites had higher financial bequests assessments than non-Whites. Physical health problems and the depleting savings assessment exerted negative effects on the financial bequest assessment. Marital status and negative psychological functioning exerted indirect effects through sense of control and through the depleting savings assessment.

Family strategies: patterns of inheritance in Odiham, Hampshire, 1525-1850

In recent years the analysis of individual communities in England has shed increasing light on their economic, social, demographic, cultural and religious development during the three centuries prior to the Industrial Revolution. Contemporaneously, and to some extent resulting from these local studies, there has been a growing interest in the family and patterns of inheritance. Similarly, among social anthropologists there has been the development of the concept of ‘strategy’ with writings on marriage, fertility, inheritance and migration strategies, although these may be regarded as components of general family strategies. Whereas in some writings strategies are shown as being pursued by individuals for their own purposes, others focused on family strategies, particularly ones designed to keep a family landholding from being divided. However, whether these studies of social organization in continental Europe and Asia can be applied to the English experience remains to be seen. To begin with they are all concerned with peasant landholding and as such may not be appropriate to the English experience where the debate on whether a peasantry even existed was begun by Macfarlane's The origins of English individualism in 1978.

Secondly, there is no universal agreement on what kind of strategies were being followed, either individualistic or familial. Thirdly, there remains the question as to whether the strategies were intentional and the outcome of rational decision-making, or subconscious and rooted in implicitly accepted and long-established principles. These could have been that a landholding should remain undivided, that men had primacy over women in inheritance, that primogeniture would be practised and that younger brothers would not challenge their eldest brother's inheritance. A refinement of these approaches has been the view that family strategies could be very different. Some may have wished to hold on to the family estate and pass it on to the next generation. Others wanted to enlarge it and may have needed to do so for familial reasons, and yet more families may have wanted to create an estate where none yet existed. But in all cases, it is stated, there were families consciously planning and pursuing a strategy for the benefit of future generations. Furthermore, it is said that these strategies could only be pursued by families above the level of the poor and only became possible in western Europe in the sixteenth century as a result of changing attitudes and growing individualistic commercialism.