The following example contains actual facts[1] from cases on which I have consulted.

Mrs. W, a once-married 85-year-old widow with three children, died in 2010. After her death, her son and daughter who lived on the east coast learned to their astonishment that their youngest sister (“A”), the caretaker of their mother for the last two years of her life, was the sole heir of their mother’s sizable estate. The disinherited children obtained legal counsel and timely filed suit disputing the validity of their mother’s restated will and trust, alleging a lack of Testamentary Capacity and Undue Influence (Testamentary Capacity is not discussed hereafter).

During discovery, the following facts were learned:

  • The restated will and trust was executed two weeks before Mrs. W’s death.
  • Mrs. W was in declining health during her last two years due to a stroke, which left her with a right-sided paralysis, blurred vision, and congestive heart failure.
  • Mrs. W’s home health care assistants were fired by the youngest daughter, “A”, shortly after the stroke, and she then moved into the family home. Thereafter, she limited Mrs. W’s contact with her other two children.
  • The youngest daughter was considered the “black sheep” of the family due to alcohol abuse, serial divorces from abusive and deceitful men, and profligate spending.
  • Mrs. W provided financial and emotional support to her youngest daughter throughout her adulthood, repeatedly bailing her out of the consequences of her bad decisions and self-destructive behaviors.
  • Mrs. W’s two oldest children were successful financially, in their occupations, and in their relationships. The youngest sister was known to be envious of their successes and was estranged from them.
  • Mrs. W repeatedly told her three children her estate would be equally divided between them, and prior testamentary documents were so written.
  • During Mrs. W’s last two years of life, “A” took her mother to all of her appointments and provided history to her doctors and others when Mrs. W forgot or erroneously reported important facts about day-to-day events.
  • “A” hired and paid for the new attorney, Mr. M, who wrote up the restated will and trust which named “A” as the trustee and sole beneficiary.
  • Mr. M had a prior professional relationship with “A”. He did not video or audio record his interview of Mrs. W nor did he have a retainer letter signed by Mrs. W at the time of signing.
  • Mr. M did not meet in person with Mrs. W before drawing up the last testamentary documents. “A” may have been present when Mrs. W signed the restated documents. No mental status exam was performed by Mr. M. His notes are sketchy.
  • “A” signed her mother’s checks and paid her bills, and accompanied her mother to the bank during the last two years of her life. She signed checks in Mrs. W’s name for more than $250,000 which were not accounted for during the two years she cared for her mother.
  • Mrs. W’s medical records revealed post-stroke residual motor and cognitive impairments and periods of confusion. A diagnosis of Post-CVA Dementia was given. Two emergency department visits occurred for lightheadedness or fainting (syncope) during the two weeks before the restated documents were signed. Her congestive heart failure was worsening. The death certificate gave cause of death as multiple organ failure, congestive heart failure, and stroke.

Based upon the available information, what were the medical/psychiatric indicia of Undue Influence?

  • Chronically ill elderly, disabled person.
  • Cognitive impairment with impaired short-term memory, right-sided paralysis, confusion, fluctuating states of consciousness, and impaired ability to organize daily activities.
  • Congestive heart failure, causing decreased oxygen saturation of the blood, which aggravates cognitive impairment and shortness of breath, which elevates anxiety, lightheadedness.
  • Medical impairments cause excessive reliance on the caregiver and fear of abandonment if Mrs. W is noncompliant.
  • Information from collateral sources revealed isolation from Mrs. W’s other two children contributed to Mrs. W’s belief they abandoned her during her time of need.
  • Mrs. W is easily confused and has blurred vision, which impairs her ability to read the restated documents. Mr. M has no prior professional relationship with Mrs. W but does with “A”.
  • Non-medical indicia of undue influence: “A” is a “person of trust,” and Mrs. W relies on her. The restated documents are contrary to all previous wills and trusts. “A” is the sole beneficiary, which is an “unnatural” disposition of Mrs. W’s estate.


Multiple medical indicia exist which supported my medical opinion that Mrs. W had a diminished capacity to exercise her free will. When applying the legal guidelines, my opinion is consistent with applicable multiple factors of Undue Influence causing Mrs. W to change her testamentary documents: “A” unfairly persuaded Mrs. W to change her will and trust; Mrs. W was under the domination of “A”; and Mrs. W acted in a manner inconsistent with her wishes because “A” substituted her judgment for the judgment of Mrs. W and deprived Mrs. W of her free will[2]. It is important for the psychiatric evaluator not to assess or opine about non-medical indicia of undue influence except to identify them, nor to opine about the ultimate question unless the court (such as federal courts) requires such an opinion as a prerequisite to provide the expert opinion. That task is for the trier of fact.

1 Facts have been disguised for privacy reasons.

2 Note to reader: Usually I am expressing a medical opinion about diminished mental capacity. I then express a medical opinion about my assessment, utilizing the state’s guidelines in the context of my medical opinion. I do not express an opinion about the ultimate legal question, unless I am required to.