A ruling that an individual requires a conservator to assist them in managing their financial and legal affairs does not necessarily mean that they are incompetent to execute a will because the standards for both are different. However, it can be a evidence of a lack of testamentary capacity, which was the case in In re: Estate of Montana Jaisul, where a Massachusetts probate court rules that Montana Jaisul did not have the capacity to execute her will.
The History
In November 2019, Somerville Cambridge Elder Services petitioned for an appointment of a conservator for Ms. Jaisul after finding that she had been scammed out of $221,000 to pay the taxes on a purported million dollar lottery prize.
A geriatric psychiatrist examined Ms. Jaisul and determined that she suffered from dementia with mild to moderate cognitive impairment. The probate court accordingly appointed a conservator.
The decree of conservatorship incorporated a stipulation that “an independent psychiatric evaluation is being scheduled of the Protected Person to assess her ability to execute a Will to establish an estate plan.”
It included the following further statement:
“The Temporary conservator has determined that although the Protected person is of advanced age, she is competent to continue to manage her rental properties and pay the expenses related thereto and can be reasonably trusted to do so in an appropriate matter.”
In other words, this was a limited conservatorship under which Ms. Jaisul maintained the right to manage some of financial and business affairs.
Subsequently, in the spring of 2020, a psychologist rather than a psychiatrist met with Ms. Jaisul remotely (no doubt due to the Covid pandemic) over two sessions lasting a total of 2.3 hours. He concluded that Ms. Jaisul was oriented, was aware of the nature and extent of her real estate holdings, knew who she wanted to name in her will, did not appear to be under any pressure in this regard, and could provide a reasonable rationale for her choices.
Five months later in October 2020, Ms. Jaisul executed a new will. (Her prior one was 40 years old.) The will references the conservatorship and then says: “I have been examined by a professional psychologist and deemed to be of sound mind.” There were some errors in the in terms of familial relationships, identifying a cousin and a second cousin as nieces, and third cousins as grandnieces.
Ms. Jaisul died in May 2023. The attorney who drafted the will petitioned to be appointed personal representative. Various relatives who were not included in the will objected. They also submitted affidavits recounting interactions with Ms. Jaisul in which she appeared to be disoriented. One describes a telephone conversation in 2020, Ms. Jaisul was “going by her grandmother’s house to help her clean and we’re going to dance, dance, and dance.”
The Decision
The court recounts the law that a will will be presumed to be valid and the testator to have capacity unless there is some evidence of a lack of testamentary capacity. In the event of such evidence being presented, the burden of proof switches to the proponent of the will.
In this case, the court finds that given the existence of the conservatorship the burden is on the proponent of the will to establish Ms. Jaisul’s capacity. In making a determination as to Ms. Jaisul’s capacity, the judge appears quite troubled by the fact that she was examined by a psychologist rather than a psychiatrist and that he performed no formal cognitive testing. She also felt that given Ms. Jaisul’s history of having been a victim of scams, he “should have provided a detailed rationale to support his belief that the Decedent was not being influenced in her decisions.” Further, the judge notes since his examination was a full five months before Ms. Jaisul executed her will, her capacity could have fluctuated in the meantime.
The court also points out that the conservator could have asked the court to create a will for Ms. Jaisul which would have involved giving notice to her next of kin. “While this is not required if a person maintains testamentary capacity, it certainly would have been the prudent course of action in a case where a medical certificate filed in court indicates that the Protected person suffered from dementia and was susceptible to undue influence.”
Accordingly, the judge finds that the proponent of the will did not meet his burden and rules the will to be invalid.
My Questions About this Decision
I find this decision to be troubling on a number of levels. First, the weight the judge puts on the fact that the evaluation of Ms. Jaisul was performed by a psychologist rather than a psychiatrist seems totally unwarranted (perhaps because I’m married to a psychologist). Both can perform cognitive assessments and the factors for determining testamentary capacity — knowing one’s assets and the people they would like to benefit — can be easily assessed by both. A formal cognitive test is not necessary to determine whether an individual meets the requirements for testamentary capacity — an understanding of the extent of their assets and the natural objects of their bounty. The five-month gap between the assessment and the execution of the will would have existed no matter who conducted the assessment.
But here is where there’s a surprising gap in the evidence presented. We are provided no knowledge of the circumstances of the will’s drafting and execution. There is some discussion of whether conservator had a conflict of interest because he also represented a beneficiary of the will on the sale of her home and attended her husband’s funeral, but he states that he had no involvement in the will’s creation. The attorney who drafted the will and supervised its execution should have the best and most relevant evidence and information about Ms. Jaisul’s capacity and choices. Yet, he apparently did not submit an affidavit.
This gets me to my major disagreement with this decision. It is a summary judgment decision. As the court states, the party moving for summary judgment must “demonstrate that the contestant has no reasonable expectation of proving an essential element of the case.” It seems clear to me that the proponent of the will can be reasonably expected to establish Ms. Jaisul’s capacity and freedom from undue influence simply by presenting the testimony of the drafting attorney. Absent that testimony, it’s unclear to me how a summary judgment decision can be made.
Further, it seems a bit unfair for the judge to be second guessing the course of conduct of the conservator back in 2020 when the country was in the midst of Covid pandemic. To suggest that he should have sought a court-created will for Ms. Jaisul when he had a psychological assessment indicating that she had testamentary capacity at a time the courts were functioning at even more limited capacity than usual, fails to recognize the reality on the ground.
Finally, anyone can be subject to a scam. The judge apparently has not seen the movie Thelma, in which an older woman who fell victim who fell victim to the common scam about a grandchild in trouble hunts down her perpetrators, nor the recent New York Times article describing how perfectly competent vacationers are lured into plopping down large sums to join practically worthless vacation clubs. The fact that Ms. Jaisul fell victim to a scam does not mean she did not have the capacity to execute a will.
The court should allow the case to go forward with a full evidentiary proceeding to assess Ms. Jaisul’s capacity when she executed her will.