Litigation involving undue influence and lack of testamentary capacity involves the determination of the mental state of the testator.  While a medical diagnosis is not dispositive of the legal issue of whether or not testamentary capacity exists, or whether a testator is susceptible to influences, it is a very important piece of evidence for the fact-finder to consider.

Gina Kolata, writing for the New York Times, reports on new proposed diagnostic guidelines for Alzheimer/s disease.  She states: 

"If the guidelines are adopted in the fall, as expected, some experts predict a two- to threefold increase in the number of people with Alzheimer’s disease. Many more people would be told they probably are on their way to getting it. The Alzheimer’s Association says 5.3 million Americans now have the disease.

The current formal criteria for diagnosing Alzheimer’s require steadily progressing dementiamemory loss and an inability to carry out day-to-day activities, like dressing or bathing — along with a pathologist’s report of plaque and another abnormality, known as tangles, in the brain after death.

But researchers are now convinced that the disease is present a decade or more before dementia.

“Our thinking has changed dramatically,” said Dr. Paul Aisen, an Alzheimer’s researcher at the University of California, San Diego, and a member of one of the groups formulating the new guidelines. “We now view dementia as a late stage in the process.”

The new guidelines include criteria for three stages of the disease: preclinical disease, mild cognitive impairment due to Alzheimer’s disease and, lastly, Alzheimer’s dementia. The guidelines should make diagnosing the final stage of the disease in people who have dementia more definitive. But, the guidelines also say that the earlier a diagnosis is made the less certain it is. And so the new effort to diagnose the disease earlier could, at least initially, lead to more mistaken diagnoses. "

Click here to read the entire article.

J. Michael Young on his Texas Probate Litigation Blog says, and I whole-heartedly agree: 

"I hope the legal community addresses the increasing incidence of those with dementia being led to execute wills, payable on death designations, powers of attorney, and other key legal documents used to transfer assets."