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Reid Kress Weisbord & David Horton, The Future of Testamentary Capacity, 79 Wash. & Lee L. Rev. 509 (2022).

I must admit that I never followed Britney Spears until a colleague pointed out that her life was a family law exam in the making. The annulment of her 55-hour marriage, followed by her secret wedding to Kevin Federline and their very public divorce and custody battle allowed me to bring pop culture and Hollywood drama to my Family Law course. Spears’s life is once again the subject of discussion in law school classrooms, this time in Trusts & Estates courses. Spears’s lack of control over her life and finances while under a guardianship brought to light the injustices of guardianship systems that, despite significant reforms, restrict the rights of persons with cognitive, intellectual, or developmental disabilities (CIDD) to make personal and financial decisions. Few people, however, have considered why the law deprives persons with CIDD of the right to make decisions about their property at death, when their financial decisions can no longer benefit or harm them. This is the question driving Weisbord and Horton’s The Future of Testamentary Capacity.

Weisbord and Horton examine reforms to guardianship laws that aim to preserve the freedoms of persons with CIDD as much as possible, provide due process protections, including the right to participate in guardianship proceedings, and shift away from surrogate decisionmaking toward supportive decisionmaking—a model designed to help persons with CIDD make their own decisions with the support of others. They then explore why similar reforms have not been extended to testators and whether they should be. Weisbord and Horton demonstrate that while guardianships laws in many states increasingly try to preserve and facilitate the autonomy and decisionmaking ability of persons with CIDD, the law of wills continues to deprive them of the right to devise their property at death. A person who lacks testamentary capacity cannot make a will, and under the non-delegation doctrine, their guardian (or agent acting under a power of attorney) cannot make one for them. In short, persons who lack testamentary capacity are consigned to intestacy. Moreover, while persons who are the subject of guardianship petitions have a right to participate in proceedings about their capacity, in most jurisdictions testators cannot do the same as there is no mechanism for assessing their capacity until the will is probated—after their death.

Weisbord and Horton collected data from 3,449 probate administrations in two counties in California to support their arguments that the law’s current approach to testamentary capacity has not kept pace with guardianship reform efforts to respect the autonomy interests of persons with CIDD. The data set shows that a testator’s capacity is adjudicated, on average, almost four years after execution of the will and rarely included “facts that bore directly on the black letter elements of the capacity doctrine.” (p. 31). Instead will contestants “offered nothing more than generalized medical evidence: proof that the testator was suffering from cancer, Alzheimer’s disease, substance abuse, or a brain tumor.” (Id.) Despite the lack of clear evidence of incapacity, will contestants in these cases received, on average, 58% of the value of their claims, a rather favorable outcome, usually as a result of settlement. This study suggests that will contestants are often successful because testators’ capacity is evaluated when witnesses’ memories have faded and testators cannot take the witness stand and demonstrate their capacity.

Weisbord and Horton then consider whether some of the principles underlying guardianship reforms require reconsideration of the “worst evidence”1  approach to testamentary capacity. They consider whether the Due Process Clause requires making living probate, which is only available in eight states, available to testators who wish to litigate capacity claims while they are alive. They also consider whether the trend towards supportive decisionmaking in guardianships suggests that persons with CIDD should be able to make a will with the assistance of others. Finally, they recommend changes to the outdated standard for testamentary capacity that excludes non-traditional families and penalizes testators whose estate plans deviate from social norms, and requires contestants to prove that testators devised their property in an irrational manner. They also propose changes to the evidentiary standards in capacity contests. Specifically, they recommend that will contestants be required to prove that the testator lacked capacity by clear and convincing evidence, a departure from the preponderance of the evidence standard applied by most states and a rejection of the presumption of incapacity applied in the minority of states that require proponents of the will to prove testamentary capacity. They also propose that lawmakers apply the standard for testamentary capacity to nonprobate transfers instead of the higher standard of contractual capacity that some jurisdictions apply to will substitutes.

Rarely does an article that proposes multiple reforms (I counted at least five) raise so many questions. While I agree that will contestants should have to prove lack of capacity by clear and convincing evidence and the same standard for capacity should apply to wills and will substitutes, I remain undecided about living probate and whether supportive decisionmaking will enable persons with CIDD to make a will. But apparently, so are Weisbord and Horton. They conclude that “there is a glimmer of an argument that the Due Process Clause entitles testators to litigate capacity claims during their lives.” (P. 5.) This conclusion is dissatisfying to readers like myself who revere testamentary freedom and view capacity contests with suspicion. However, Weisbord and Horton’s careful analysis of the challenges presented by living probate suggest that we need to find other ways to ensure that individuals with CIDD are not relegated to intestacy.

Weisbord and Horton explain that even if a person has a constitutionally protected interest in disposing of their property by will, it is not clear what procedural safeguards the state must provide before depriving them of that right. First, the state does not know while a person is alive whether they have executed a will or whether the will is likely to be challenged after their death. Consequently, the state cannot provide all testators with notice and a hearing before refusing to enforce their will. Second, the availability of living probate may increase the number of will contests and tax judicial resources especially if a testator executes a new will and the courts end up having to probate multiple wills during a testator’s lifetime. Weisbord and Horton point out that there is no evidence that living probate has opened the floodgates of litigation in the minority of states that provide it but it is hard to assess the effects until we have data comparing the number of living probate proceedings with posthumous capacity contests in the years before these states allowed living probate.

Despite the challenges raised by living probate, Weisbord and Horton’s reminder that the law can deprive testators of the right to devise their property with minimal safeguards, and can do so under the worst evidence regime, is haunting, especially when we consider another question they raise. What is the state’s interest in requiring testamentary capacity when testators will not be harmed by their choices even if unwise? As Weisbord and Horton contend, if the state is concerned about unscrupulous third parties exploiting vulnerable testators, the doctrines of undue influence, fraud, and duress are designed to address a third party’s wrongdoing. Indeed, as their study demonstrates, the vast majority (over 80%) of capacity contests also allege undue influence. Thus, in the absence of wrongdoing, why is capacity a requirement for making a will?

While Weisbord and Horton are troubled by the law’s relegation of persons who lack testamentary capacity to intestacy, they nevertheless acknowledge the risks of allowing them to make a will even under a supportive decisionmaking model. They point out that supportive decisionmaking is already a part of estate planning as lawyers help testators plan for contingencies they might not have considered and understand the consequences of their choices. Yet, they recognize that supportive decisionmaking may lead to financial exploitation by wrongdoers and may not always help persons with CIDD acquire testamentary capacity. As a result, their wills would likely reflect the wishes of the wrongdoer or supporter instead of the testators’ wishes if they were competent. In the end, Weisbord and Horton conclude that “only time will tell whether [supportive decisionmaking] does (or should) displace the conventional test for capacity.” (P. 47.)

The issues Weisbord and Horton raise do not come with immediate solutions but their article is a reminder that the rights of persons with CIDD to make financial decisions include the right to devise their property. As such, it is not enough to reform guardianship laws (although there is a lot more work to be done there), but we must also reform testamentary capacity laws to preserve the freedom of persons with CIDD to the fullest extent possible.

Editor’s Note: Reviewers choose what to review without input from Section Editors. Jotwell Trusts and Estates Section Editor, Reid Weisbord, had no role in the editing of this article. 

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  1. John H. Langbein, Will Contests, 103 Yale L.J. 2039, 2046 (1994) (noting that “the ‘worst evidence’ principle of American probate law requires the testator to be dead before the court decides whether he was capable when he was alive”).
Cite as: Solangel Maldonado, Guardianship Reform: Lessons for Reforming Testamentary Capacity Laws, JOTWELL (September 28, 2022) (reviewing Reid Kress Weisbord & David Horton, The Future of Testamentary Capacity, 79 Wash. & Lee L. Rev. 509 (2022)), https://trustest.jotwell.com/guardianship-reform-lessons-for-reforming-testamentary-capacity-laws/.