Decedents' Estates July 2002 Flashcards
(4 cards)
Summary
Nephew would not be liable in wrongful death if, as it appears, he acted under a valid durable health care power of attorney and in good faith. His decision to direct the withdrawal of life support was entirely consistent with the doctor’s medical advice.
Testator’s will appears to have been validly executed. Arguments that Testator lacked mental capacity should fail because the facts show that she knew both the objects of her bounty and the nature and extent of her property.
Lastly, Nephew would not forfeit his share under typical state interested witness statutes because the will bequeathed him a share less than what would have been his intestate share. Likewise, under the UPC, he would take his share as that statute has no interested witness forfeiture statute
Under the typical durable health care power of attorney statute, if Nephew acted under a valid durable health care power and in good faith, he would be shielded from civil liability that might otherwise arise as a result of his directing the withdrawal of the life-support systems.
The typical durable health care power of attorney statute immunizes the agent of the principal from civil liability for health care decisions made in good faith. See, e.g., Unif. Health Care Decisions Act § 9(b)(1993). Health care decisions include the decision to withhold or withdraw life-sustaining treatment, including food and hydration.
Agents act within the scope of the statute when they act pursuant to a properly executed durable health care power of attorney. State laws vary, however, on whether the person designated as the agent can be a witness to the durable health care power of attorney. For example, under the Uniform Health Care Decisions Act, the designated agent is not prohibited from being a witness. In fact, under the Uniform Act, no witnessing of the power is required. On the other hand, in many states, the person designated as the agent cannot be a witness to the power.
Even if Nephew was not legally constituted as Testator’s agent, he may nonetheless have acted appropriately under so-called “family consent” laws. These laws permit close family members (typically in the order listed in the statute) to act as a surrogate decision maker for a patient where there is no properly authorized agent acting under a durable power. For example, under § 5 of the Uniform Health Care Decisions Act, Nephew could act as a surrogate decision maker since there are no more closely related relatives and Nephew is an adult “who exhibited special care and concern for the patient.”
Whether Nephew was acting as a properly constituted agent or as a surrogate under the family consent law, ultimately the issue of civil liability most likely depends on whether Nephew acted in “good faith.” Here the facts suggest that he did. Testator had suffered a massive stroke and had lapsed into a coma, and Nephew’s direction to withdraw Testator’s life support appears to be consistent with sound medical advice to the effect that more care would be futile. While the fact that Nephew is named in Testator’s will as a beneficiary may create the appearance of impropriety, this fact alone is not sufficient evidence of bad faith; empirically most agents and surrogates are persons who are both close to the principal and named as beneficiaries under the principal’s will.
Testator’s will is valid notwithstanding that Testator was sometimes forgetful, as the facts support the conclusion that Testator had the mental capacity to execute a will.
In order to validly execute a will, Testator must have “mental capacity.” A testator has mental capacity if the testator knows (1) the nature and extent of the testator’s property, (2) those persons who are the natural objects of the testator’s bounty, (3) the nature of the instrument that the testator is signing, and (4) the disposition that is being made in the will. See generally William H. McGovern & Sheldon F. Kurtz, WILLS,TRUSTSAND ESTATES 272 (2d ed. 2001).
Here Testator was forgetful, which at first blush suggests the absence of mental capacity. But simply relying on that fact is insufficient to determine whether Testator had mental capacity since the criteria that determine mental capacity for purposes of validating a will look specifically to Testator’s understanding of her property interests, her beneficiaries, and her disposition. On these issues, the facts suggest that Testator did have mental capacity.
Testator appears to have been actively involved in the management and administration of her property affairs, suggesting that she knew the nature and extent of her property. She knew those persons who might be the objects of her bounty as evidenced by the fact that she frequently visited with her 20 relatives, including those not mentioned in her will. Furthermore, the bulk of her estate is bequeathed to Charity, an organization with which she had had a long association. Thus, the will does not reflect a disposition that would likely be inconsistent with Testator’s testamentary intent. Given that the burden of proof to establish the lack of testamentary capacity rests on the contestants, it is most unlikely that they could sustain that burden on these facts.
Nephew would not forfeit any of his bequest under the will.
Under the Uniform Probate Code, Nephew would not forfeit his bequest even though Nephew was a witness to the will because the Code does not have an interested witness statute barring interested witnesses from taking under a will.
At common law, if a will was not witnessed by two disinterested witnesses the will was invalid. See McGovern & Kurtz, supra, at 177. In the United States, this harsh rule has been replaced by statutes in most states barring the interested witness from taking the bequest but not invalidating the will. Id.
The typical interested witness statute, however, contains one or two important exceptions. The first is that if the will is witnessed by three or more persons such that the will would have been valid without the witnessing by the interested witness, the interested witness does not forfeit the bequest. Id. That exception would not apply here as Testator’s will was witnessed only by two persons.
The second exception is that if the interested witness also would have been an heir of the testator, the witness forfeits only so much of the bequest as exceeds what would have been that witness’s intestate share. Under that exception, Nephew forfeits nothing, as the bequest to Nephew of $100,000 is less than what his intestate share would have been. Nephew’s intestate share would have been in excess of $250,000, as the estate is valued at more than $1 million and there are four heirs.
In light of the discussion under Point One, there is no reasonable basis on which to argue that Nephew’s bequest is invalid under the slayer statutes.
Likewise, the facts state that Nephew was wholly unaware of the will provision in his favor. Thus, there is no basis to invalidate the will on undue influence grounds.
NOTE: If the will is valid, the nieces would probably have no standing to raise the interested witness issue. If the interested witness statute applied and the bequest, or some portion of it, were forfeited, the forfeited portion would pass to Charity as the residuary legatee under Testator’s will.
