January 12, 2004, Mrs. Brooke Astor allegedly signed a codicil (an amendment to her will,) giving her son, Anthony D. Marshall, control of most of her estate. After she died, at age 105, on August 13, 2007 the question arose as to whether she was mentally competent to execute the codicil. The trial in The People of the State of New York v. Anthony Marshall and Francis Morrissey Jr. is still ongoing.
The major issue in the trial is whether, when she signed the codicil, Mrs. Astor had sufficient capacity. Mental capacity is one of the most vexing issues to confront a judge.
Our Supreme Judicial Court has said: "Testamentary capacity requires ability on the part of the testator to understand and carry in mind, in a general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will."
A person may have serious mental problems and still be able to make a valid will. A client of mine believed that someone was breaking into her house - in spite of the fact that the house was protected with locks and a burglar alarm. The client was delusional, but her delusion did not affect how she wanted to leave her property.
A person may be incompetent at one time and competent at another time. This makes it very difficult for a judge to determine competency - in the Astor case, sixty witnesses testified to Mrs. Astor's mental frailty, but none of them was there when she signed the codicil.
It takes less mental acuity to sign a will than to sign a contract. The context of the contract is an adversary relationship - each party wants to get as much benefit as possible. In the case of a will, the only question is whether the testator understood generally what he owned, who the natural objects of his bounty were, and what he wanted to give them.
