Academic journal article South Dakota Law Review

Testamentary Incapacity, Undue Influence, and Insane Delusions

Academic journal article South Dakota Law Review

Testamentary Incapacity, Undue Influence, and Insane Delusions

Article excerpt


Testamentary incapacity, undue influence, and insane delusions are recurring doctrines in the context of an impaired, weakened, or confused individual leaving a will, the validity of which comes under question. In the case of In re Estate of Berg the South Dakota Supreme Court, in 2010, held that an individual possessed testamentary capacity even where he suffered a static lifelong delusion about the identity of his father and was unable to articulate an accurate estimate of his net worth. This article uses Berg as a means of framing the requirements of a valid Last Will and Testament along with the theories under which a will may be set aside, with special emphasis given to the doctrines of insane delusions and undue influence. The author offers an analysis of the holdings and outcome in Berg along with related cases and authority in context. Berg, the author concludes, was correctly decided, its reasoning squaring with longstanding deference towards the freedom of testamentary disposition, even for individuals with diminished capacity and mental delusions.

        1. Testamentary Incapacity
           a. Nature and Extent of One's Property
           b. Natural Objects of One's Bounty
           c. Disposition One Wishes to Make
        2. Insane Delusions
           a. Irrational Belief
           b. Not Susceptible to Correction
           c. Affecting a Bequest: Causation
        3. Undue Influence
           a. Testator's Susceptibility
           b. Wrongdoer's Opportunity to Influence
           c. Disposition of Wrongdoer to do Wrong
           d. Results of the Influence: Causation
        4. Other Roadblocks to Will Validity (or Theories for
           the Will Contestant)
       a. Fraud: Intentional Trickery and Deception
           b. Duress: Amped-up Undue Influence
           c. Tortious Interference with an Expectancy: A Nascent
              Tort Theory
        5. The Uncertain Status of Mistakes
        1. The Facts and Background
        2. The Procedure and Trial
        3. The Opinion and its Quiet Legacy


In the case of In re Estate of Berg, (1) the South Dakota Supreme Court upheld the validity of a will executed by Fred Berg, an individual under a conservatorship who suffered from numerous delusions and who had been unable to live independently for most of his adult life. Fred Berg's will left his estate to his nephew Roger to the exclusion of Fred's siblings and their descendants. (2) Following a three-day trial, at which a recognized psychiatrist offered his forensic opinion that Fred was thought disordered and psychotic on the date the will was made, the Honorable Jerome Eckrich held that Fred possessed testamentary capacity and that his will was not the product of undue influence. (3)

Capacity to make a will depends on the individual being capable of identifying the "natural objects of their bounty" and both the nature and extent of their property. (4) Fred believed that his father was either the television and movie actor Fred MacMurray or a non-existent German man. (5) He had also, at some periods in the past, claimed several other non-existent relatives: a sister Hattie, a brother Charles, a niece Murtle, and a "common-law-son" Eugene. (6) Moreover, Fred indicated that his net worth was $100,000, while in fact it was five times that amount. (7) Nevertheless, the South Dakota Supreme Court upheld the will.

The following discussion assesses will validity primarily through the lens of South Dakota law, although case law from other jurisdictions is also considered. The article's observation and conclusions have import on a wider scale than South Dakota as will validity doctrines share more commonalities than dissimilarities across the country. …

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