Posted on: Sunday, May 19th, 2013
There’s a case I read a couple years ago that bothers me and that I’ve been wanting to comment on it since. It is an unpublished decision in which the trial court held that a trust amendment was invalid due to lack of capacity and undue influence. The Court of Appeals reversed the trial court. It is called Estate of Edward E. Lerg, COA case 293012, January 27, 2011. Click here to read it.
What bothers me about the case is what bothers me about the legal concept called the “lucid moment.” The problem I have with the lucid moment is twofold:
(1) It is out of touch with the modern understanding of dementing illnesses. That is, we’ve come a long way toward understanding cognitive impairment. One thing we know for sure is that people with dementing diseases don’t get better – only worse.
(2) It supports that concept that the scope of relevant/admissible evidence in capacity contests is limited to the moment of execution. Again, I would suggest that this is completely inconsistent with the way dementing conditions work, and would, if adhered to, negate most of the best evidence available in these cases.
Mr. Lerg was diagnosed with dementia in 2005 as determined by a medical professional with a high level of expertise in such matters. The doctor found that he had moderate to severe dementia and that the dementia was then to the point that Mr. Lerg had poor insight and judgment. Mr. Lerg executed a trust amendment in 2006. He was evaluated again by the same expert in 2007 and was found to have substantially declined.
While I agree that a well presented case with significant counterbalancing evidence could have been presented to overcome the medical evidence, that’s not how this case played out or how this opinion reads. Rather, the Court of Appeals reversed the trial court by severely discounting the doctor’s opinion, stating that such evidence (the Doctor’s findings) is of “very little probative value.” That statement is incredible to me and is, I would suggest, attributable to the archaic concept of a “lucid moment” (although that language was not expressly used by the Court). What’s more, the Court of Appeals cited a 1965 case for the scary proposition that: testamentary capacity “is judged as of the time of the execution of the instrument, and not before or after, except as the condition before or after is competently related to the time of execution.”
At least in the context of dementing illnesses (as opposed, for instance, to mental illness or alcoholism), it is time for the law to catch up with science and for Court’s to recognize that although persons with dementia may be better some days than others, they don’t improve over time, they only get worse. Evidence of where they were in terms of cognitive impairment a year before they executed the document in question, and where they were a year after, should be extremely probative of the question of their capacity at the time of execution. Further, if someone is significantly impaired and has a “good day” or “good hour” that “good day” or “good hour” must be seen in the context of their impairments. That is, if I don’t recall what I did yesterday and won’t remember tomorrow what I am doing today, how can it be said that I fully understand the implications of my actions today?