In the not overly distant past, the writings of the testator were the only evidence of his or her intentions and mental capacity. Undue influence was harder to defend against when the only evidence was the testator’s writings and the recollection of those around them. Imagine the scene, the packed court room (perhaps I have a flair for the dramatic), the testimony as to the deceased’s mental health and the influence exercised over them by their final caretakers and close family members made the testator’s mental health and the influence of others over them a matter of the testimony of the living and those often involved in contesting or defending the will. 

But new options exist today that make it far easier for the testator to present evidence after they have passed away. The first question to be asked in a contest involving mental capacity is that of mental deficiency. Mental deficiency is demonstrated by the testator not being able to comprehend what he/she owns, to whom he/she is giving it, and how it will be transferred in addition to the overall impact such transference will have on their estate as a whole. Previously this could only be done in writing and it was often suspected that the attorney representing the deceased might have helped that writing have all the necessary components, rendering the doctrine more flexible and open to jury or judicial interpretation than a clear matter of fact. 

However, today the process can include having the testator explain on video tape what the asset is, how it is to be transferred and to whom, and the overall implications of that transfer to the overall estate. It is easier to see the deceased, to see whether he or she seems to understand all the implications and to see whether or not he/she is the type of person who is weak willed enough to be susceptible to undue influence. In addition, protecting your client by having them explain it in their own handwriting and, on a couple of different occasions, on video tape alters the essential landscape of the court room proceedings by making the deceased a witness. 

In addition, it is often useful to send a client to a psychiatrist to verify their mental health and acuity on an ongoing basis. This is evidence that those contesting the testamentary instrument will not easily be able to counter, because they will not have their own psychiatrist who has had access to the testator. This is another excellent card to have in your arsenal as an attorney in order to protect your client’s interests which again alters the landscape of the proceeding if the will is contested. 

Questions as to whether a client is mentally capable of understanding his/her bequests, the implications of those bequests, and the relation of those bequests to the rest of his/her estate as well as questions regarding to what extent, if any, their own personality was waning and susceptible to undue influence can be answered in different way. The more the judge and jury are able to see the testator, how they behaved, and how lucid and in control of their faculties they appeared to be, the more the trial regarding wills shall depend on a more direct perception of the testator rather than one provided by second hand accounts. The wise estate planner will use video tape in conjunction with psychiatry and standardized psychiatric tests to show that the testator knew exactly what he/she was doing and will not be hamstrung, as in days past, by the perception of others.

Ronald Hudkins is a retired U.S. Army Military Police member that was assigned as a staff researcher. He has coordinated with military and criminal investigators, set on court marshals and worked closely with the Staff Judge Advocate Generals Office (JAG). He has a keen sense of legal matters - their interpretation, initiatives and guidelines. For imperative financial planning needs he suggests his book "Asset Protection and Estate Planning for All Ages." Additionally, he offers a Free Newsletter at his web site: