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Elder Law Concern – Capacity Issues

Sumner Redstone, founder of Viacom, once again had made headlines recently in his decision to alter the terms of his will, raising questions about his decision making capacity. Mr. Redstone suddenly removed two longtime trusted businessmen and friends, the chief executive and director of Viacom, from the trust that controls the media business when Mr. Redstone dies. After the ouster, both filed suit to invalidate the decision, claiming Mr. Redstone had diminished mental capacity and was being manipulated by his daughter, whom he has had rocky relationship with over the years. This is not the first time Mr. Redstone’s capacity has been challenged however. Prior to the recent ouster, he also has taken his former companions out of his trust, both were estimated to receive $75 million each.

After a series of strokes, Mr. Redstone now has a severe speech impediment that has left him needing an interpreter to speak on his behalf  in a recent deposition. However, after evaluation by medical professionals, he has once again been cleared as mental capable of making his own decisions. In his most recent medical evaluation, he recalled why he made the decision to oust the two businessmen, pointing to falling stock prices and their inability to run the company correctly.

What Does Diminished Capacity Mean?

Defining diminished capacity in the legal field depends on decision at issue. The definition can vary depending on state statute and case law. When making a will, to be valid, the person making the will, also known as the testator, must have the ability to understand (1) the nature and extent of the property he owns (2) the natural objects of his bounty, (3) the disposition that the will is making, (4) and the ability to connect all of these together to make a rational plan. The testator need not be capable of making the day to day decisions and business transactions, he must just possess capacity at the time of execution of the will. There are also different standards of diminished capacity for donative capacity, contractual capacity, capacity to convey real property, decision making capacity in health care, and capacity to mediate.
Courts presume that a testator is of sound mind, until shown otherwise. Additionally, to prove diminished capacity or unsound mind, it must be shown that the unsound mind impacted the testator’s ability to know his property and also to know whom he sought to give it to. Sometimes extrinsic evidence will be admissible to show testator’s unsound mind at the time of making the will, such as, testator’s appearance, conduct, statements, and conversations. All of these together can help build the case of sound or unsound mind.

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