Was it Undue Influence?

An Actual Case

(Redacted)

By Dale E. Panzer MD

The Case of Mr. A

This is a case in which I served as an Expert Witness. I was asked to consider the case of Mr. A and questions about Undue Influence and Testamentary Capacity. The case has been redacted. An abbreviated version appears in Undue Influence and Testamentary Capacity: Analysis of These Legal Siblings.

The Favored Caregivers

Background: Medical Condition, Susceptibility to Undue Influence and Change in Beneficiaries.

The decedent, Mr. A, had cognitive difficulty and a declining ability to care for himself.

Two years before his death, he moved to the home of two friends of seven years, will proponents Mr. X and Mr. Y.  He had never married and had no children but had lifelong involvement with his two nephews.

After death it was revealed that Mr. A had changed his lifelong preference and to now leave the residue of his estate to Mr. X and Mr. Y, with only nominal reduced amounts to his two nephews.

A substantial change in beneficiaries is not always undue influence, but it does raise an index of suspicion particularly when a decedent was cognitively impaired and limited in their capacity for independent living.

Mr. X and Mr. Y had taken care of Mr. A, including eventually managing his checkbook, helping him secure an attorney to change his will, managing his medications and preparing his meals.

Dementia and Parkinson’s Disease

I reviewed extensive medical records and documented a differential diagnosis of medical conditions potentially affecting Mr. A’s cognition that included dementia and Parkinson disease. I reviewed mental status information in the clinical record from occupational and speech therapists at a rehabilitation center. I incorporated primary care physician statements about the decedent’s cognitive functioning into my opinions. I also commented on imaging reports and laboratory studies that supported my opinions.

Weakened Intellect

I found the decedent had weakened intellect, a statutorily required element in Pennsylvania to prove undue influence, and an accepted vulnerability to undue influence.

I concluded that the record was inadequate to prove a lack of testamentary capacity with its relatively low threshold to pass.

Mr. A’s Medical Conditions Contributed to Susceptibility to Undue Influence

I concluded the decedent suffered from progressive dementia due to vascular and Parkinson’s Disease.

I demonstrated the decedent was vulnerable to undue influence due to his dependence on Mr. X and Mr. Y for: (1) daily sustenance; (2) companionship; (3) advice; (4) assistance overcoming his physical limitations; and (5) to allay his fears, worries and other concerns.

At trial, I organized data for the Court from the vast clinical record consistent with psychiatric models of vulnerability to undue influence.

The Neurologist’s Testimony

At trial, my testimony was immediately preceded by the treating neurologist, who argued that decedent’s Parkinson medications lead to “on/off” transient moments in which he appeared more cognitively impaired and that he had only mild cognitive impairment, not dementia.

The treating neurologist also argued that Montreal Cognitive Assessment (MoCA) testing performed over time supported his opinion about a lack of weakened intellect or evidence of vulnerability to undue influence.

I was then sworn in. I argued that I had researched the novel idea of on/off moments and reviewed the clinical record and found no support for this construct.  Moreover, I pointed out to the Court that the neurologist did not personally perform the cognitive testing as he worked in a university Parkinson’s clinic where a resident physician instead performed the MoCA.

I disagreed with the neurologist’s opinions about the MoCA testing as it clearly showed some cognitive difficulty in executive function, recall of information and language function; realms all pertinent to vulnerability to undue influence. I then demonstrated in detail how the MoCA results were inconsistent with other more comprehensive testing that demonstrated greater cognitive impairment and was consistent with the statutory definition of weakened intellect.  I had performed a more comprehensive review of the available medical record than the treating neurologist. This led the judge to ask me several clarifying questions about it,  which commonly occurs when I testify in will contests.

Testimony On Point

This testimony demonstrates the critical importance of a thorough understanding of the evidence and the need to adapt psychiatry testimony to address the specific issues raised at trial.

I did not opine directly on undue influence as it is the court’s ultimate opinion.


THE DECISION

The court ultimately determined that the standard of clear and convincing evidence had been met and that the burden of proof, therefore, shifted to the Respondents Mr. X and Mr. Y.

I regularly give objective trial testimony including defending wills. I assess each case on its merits.