MORE WILL CONTESTS, continued

The Lawyer's Skill at Assessing Mental Capacity

Guarding against claims of lack of testamentary capacity -- a legal vs. a medical term -- requires becoming skilled at assessing mental capacity. Whether the lawyer uses the Mini-Mental Status Examination or some other test of capacity (e.g., asking the client to draw the face of a clock with the time at 10:15 or spell "world" backwards), the lawyer must know [i] when capacity is likely to become an issue (e.g., the client (a) in early stages of Alzheimer's, (b) who is disinheriting "the natural objects of his bounty," or (c) who is making an unusually large bequest to a charity or for a pet), and [ii] the extent of precautionary steps to take -- whether to (a) schedule an expensive battery of neurological tests, (b) videotape the Will execution, or (c) informally administer the Mini-Mental. E.g., estate planners know that videotaping can be a two-edge sword if the drafting attorney is asked under cross-examination how many "takes" were made before securing the final videotape or why taping was felt to be necessary in the first place.

The Client's Skill at Camouflaging Lack of Capacity

The lawyer's assessment of mental capacity may be complicated by a very educated or sophisticated client deft at camouflage diminishing mental capacity. E.g., a client asked about their age may disguise memory loss by answering "A gentleman never asks a lady her age," or "Why I'm old enough to be your father." This author's experience with elders is that loss of mental capacity is much more frightening than loss of physical capacity, and especially so for elders who were once impressively sharp thinkers. Often, the well-educated, sophisticated elder has seen signs of their diminishing mental capacity and is frightened into self-denial. Once they can no longer deny their diminishment to themselves, they may continue to struggle to hide it from family, friends, and others. The lawyer who suspects that education or sophistication may be covering lack of capacity must never-the-less pursue the assessment even if it's very painful for the client, who should be told that the assessment is necessary to ensure that the client's testamentary wishes are fulfilled. Sometimes several sessions with the client or a follow-up phone call the next day may be necessary to assess long-term memory or consistency in dispository wishes. Sessions with these clients must be patient, rather than rushed or strictly timed.

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