Case Study 9

Can an Involuntarily Conserved Person Make a Will?

The decedent, William, died on February 19, 2014. In 2006, he executed a Will naming his three children (Andrew, Zelda and Jonathan) from a prior marriage as beneficiaries. The children’s mother was deceased. William was married at his death to Frances. They were married for 33 years. Some time before William died, he suffered from several illnesses which included severe anxiety and depression, post-traumatic stress disorder from his service during World War II, mild to moderate dementia, impaired hearing and frequent urinary tract infections. As a result of his health issues, William was hospitalized at a residential psychiatric facility. In October of 2011, Frances filed an involuntary application for the appointment of a conservator of her husband’s person and estate. Following a hearing, a Connecticut Probate Court appointed her to be her husband’s conservator.

William then executed a new Will on May 7, 2012. In this Will, he left various items of personal property to Andrew and Zelda, as well as some of his grandchildren. He also left $1.00 to his son Jonathan. The remainder of his estate was left to Frances, his wife of 33 years. William died approximately two years later.

After his death, Frances filed his 2012 Will with the Probate Court. The children contested the Will, claiming – among other things - that William lacked the testamentary capacity to execute the 2012 Will. After a trial, the Probate Court admitted the 2012 Will finding that it had been executed properly and that he had the requisite testamentary capacity to execute it. As part of the Court’s order admitting the Will, Frances was appointed as executrix of the estate. The children then brought an appeal to the Connecticut Superior Court. The issue on appeal was whether a person who was involuntarily conserved, had the capacity to make a Will?

During the trial in the Superior Court, the Court looked to the facts surrounding the execution of the Will itself. For example, William’s attorney brought two witnesses into his home where he signed the Will in their presence. Both of the witnesses attested that they subscribed the Will in William’s presence and in the presence of each other; that William signed, published and declared the Will to be his Last Will and Testament in their presence; that he was able to understand the nature and consequences of his Will; and that he was not under any improper influence or restraint according to the witnesses.

Further, the attorney who prepared William’s 2012 Will testified that when she first met him in October of 2011 for the conservatorship matter, he was eloquent, well-spoken and coherent. She testified that he was oriented as to place and time. She testified that William was able to ask relevant and reasonable questions about the conservatorship and that he was informed about the difference between a voluntary conservatorship and an involuntary one. The attorney also testified that he clearly wanted Frances to have full authority over his affairs. Last, William’s attorney had met with him and him alone and that Frances was not present for any of their discussions.

Regarding his Will, William’s attorney testified that he was clear about his desire to change it, as well as the distribution of his estate. The attorney further testified that once the conservatorship was in place, she met with William three separate times over the course of several months to go over the new estate plan and to conduct a detailed review of his assets with him. She further testified that every time she met with him, his wishes remained consistent regarding his new estate plan and that he never wavered or was confused about what he wanted. Finally, the attorney testified that William’s focus was on providing for his wife.

As part of the process of creating his estate plan, William was evaluated by a psychiatrist. Approximately two weeks before he signed his new Will, William met with him for a formal clinical interview. Prior to this interview, the psychiatrist reviewed William’s medical history. At trial, the psychiatrist testified that while William had dementia, his particular dementia was progressing slowly. In addition, the psychiatrist testified that William had memory deficits and episodes of delirium during those times when he suffered from urinary tract infections. Nevertheless, William’s treatment history proved that when he was treated for his urinary tract infections, he returned to lucidity quickly and functioned at a stable level. Ultimately, the psychiatrist testified that in his professional opinion, William possessed the cognitive ability to know the nature and extent of his assets and how he wanted to dispose of them.

The Superior Court concluded that William had the requisite mental capacity to understand the 2012 Will, that he knew the nature and extent of his estate and thus, how he wanted his Will to dispose of his assets at his death. This decision was subsequently appealed to the Connecticut Appellate Court. The name of the case is Bassford vs. Bassford, 180 Conn. App. 331 (2018). On appeal, that court examined the record, as well as the briefs and arguments of the parties and concluded that the judgment of the Superior Court should be affirmed.

The lesson in Bassford is that three separate courts concluded that an involuntarily conserved person could make a Will. So if you are in a situation where you are conserving someone who has no estate plan or perhaps you are being conserved yourself and you wish to create a plan that reflects your wishes, it may not be too late to put something together. At Cipparone & Zaccaro, we would be happy to analyze your unique situation, discuss your options and if appropriate to do so, recommend a plan that reflects your wishes and provides for your loved ones.

 About the Author  (click image for contact information)

Mark Pancrazio is a shareholder at Cipparone & Zaccaro, P.C. in New London CT.  Mark brings a wealth of experience in various areas of the law, including estate and trust administration, estate and trust litigation, estate planning, conservatorships and probate law. Mark is currently a member of the Elder Law Section of the Connecticut Bar Association and a former member of the Western Connecticut Senior Alliance. Mark practiced law in Danbury, CT before joining the firm.
(860) 442-0150

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