It may be interesting to note that the Israeli courts have developed the following criteria for assessing testamentary capacity and whether there has been undue influence on a person when making their will:
- Dependency and independence
- Dependency and support
- Relationship of the testator with others and level of contact with them
- Circumstances of making the will.
- Attorney-General vs. Rina Marom (1993)
In each case, the court will want to know about the testator’s general level of ability to do the ordinary things of life (ADL) and in what areas the testator needed the help of the caregiver; about the level of support that the caregiver gave; and about the involvement of others in giving such support. It is important to consider whether the caregiver restricted or altogether prohibited contact between the testator and other people who were usually in contact with him/her, or insisted on being present when there was such contact; and how much, if at all, the caregiver was involved in arranging for the writing of the will and its contents.
It will also be necessary, of course, to assess the testator’s general level of competence to make a will. One of the important criteria is the level of complication of the will’s provisions – a person may be competent to make a simple will where his family situation is simple – benefiting the spouse and children only – but not where there are ex-spouses and multiple children who are not at peace with one another. He may be deemed competent where the estate consists of few items of property (a home, a bank account and life insurance), but not where there are many types of property in several locations.
It is worthwhile to investigate if, and under what circumstances, the testator gave power of attorney or signing privileges to the caregiver, and also any transactions to which the caregiver was party, in the period since the testator’s capacity started to decline, as the undue influence doctrine has been extended to inter vivos transactions.
Together with Dr. Eliezer Perl, a psychiatrist who specializes in treating the elderly, I wrote an article entitled “A Medical – Legal – Halachic Guide to Establishing Testamentary and Gift Giving Capacity”, which was published in Hebrew in Assia – The Journal of Medicine Ethics and Halacha in 2014. Click here to download the PDF version (so far, sadly, not translated into English.)