Testator lacked capacity to execute estate planning documents

In Texas Capital Bank v. Asche, the Dallas Court of Appeals affirmed the probate court's judgment that a series of estate planning documents should be set aside. The judgment was based on jury findings that the testator lacked sufficient mental capacity to execute the documents. This was not the classic case of challenged will executed in the days or weeks before death. In this case, the challenge was to a series of wills, codicils, and trust documents executed over a period of about 13 years. This was not an easy task for the contestants, given the long time period and number of documents executed. The challenge was largely based on the testimony of a forensic psychiatrist, Dr. Lisa Clayton. She opined that a stroke the testator suffered in 1997 rendered him without testamentary capacity until he died in 2011. In support of her opinion, she performed a forensic autopsy, which she described as a retrospective evaluation of competence. In forming her opinion, Dr. Clayton relied on deposition testimony, the testator's medical records, and a 2008 CT brain scan. She testified that “brain damage is permanent. The brain doesn’t regenerate.” She further explained that someone can lose executive functioning and still be able to sign his name, or have stimulus-based responses. But “as for anything more complicated where you’ve got to hold ideas, more than one idea in your head for a period of time, you don’t have that ability.” Dr. Clatyon added that short-term memory is the first to go. On the other hand, she said long-term memory, “such as where you were born, where you graduated school” is “one of the last things to go.” Consequently, according to her, people can be fooled about someone’s abilities when that person demonstrates long-term memory and that the testator's ability to speak foreign languages was consistent with having long-term memory. In the appeal, the proponents of the documents noted evidence in the medical records that they alleged contradicted Dr. Clayton's opinions. They also asserted various attacks on the foundations and reliability of her opinions. These are standard attacks on the opinions of hired expert witnesses. The Dallas Court of Appeals rejected these challenges, finding that the evidence adequately supported Dr. Clayton's opinions even if reasonable minds could have differed with her conclusions. The court also noted that various fact witnesses testified that the testator was not the same after the 1997 stroke. The court ultimately noted:

There is unquestionably conflicting evidence regarding Tex’s testamentary capacity at the relevant points in time. But the contrary evidence upon which appellants rely is part of the mix the jury considered when determining witness credibility in its ultimate testamentary capacity determination. We may not substitute our judgment for the jury’s. And the jury’s resolution of any conflicts and inconsistencies in the evidence against appellants does not render the evidence insufficient.

While it is difficult to overturn estate planning documents executed over a long period of time, this decision illustrates that courts are reluctant to overturn a jury's decision regarding testamentary capacity. That is often true even if the primary evidence is in the form of testimony from a paid expert witness.