Dougherty v. Rubenstein

EYLER, DEBORAH S., J. The “insane delusion rule” of testamentary capacity came into being almost 200 years ago, as the invention of British jurists in Dew v. Clark, 162 Eng. Rep. 410 (Prerog.1826). The rule was devised to cover a gap in the existing law, which held that “idiots and persons of non-sane memory” could not make wills, see 34 & 35 Hen. 7 , ch. 5 (1534), but accepted as valid the will of a testator “who knew the natural objects of his or her bounty, the nature and extent of his or her property, and could make a ‘rational’ plan for disposition, but who nonetheless was as crazy as a March hare[.]” Eunice L. Ross & Thomas J. Reed, Will Contests § 6:11 2d. (1999). ²⁷³ In the Dew case, a father insisted that his grown daughter, who by all accounts was a well-behaved, sweet, and docile person, was the devil incarnate.

The father’s wife had died in childbirth, and so as a young child the daughter was raised for the most part away from the father, by nannies and in boarding schools. The father’s peculiar thinking about her first manifested itself when, in response to a letter reporting that the child was suffering “chilblains” that were “gross,” the father went on a tirade, sending letter after letter insisting that the child was “gross” in every way. 1 By the time his daughter was 8 or 9 years old, the father spoke of her only as wicked, having vices not possible of a girl that young, depraved in spirit, vile, of unequaled depravity, deceitful, and violent in temper. He told others that she was a child of the devil and a “special property of Satan.” Id. at 426. When the child came to live with him, he treated her as a servant and physically tortured her.

In 1818, the father made a will that disinherited his daughter. Three years later, he was the subject of a writ “de lunático inquirendo ” and was declared by a court of chancery to be of unsound mind. He died later that year. In a caveat proceeding by the daughter, the evidence showed that the daughter was known by all for her good disposition and that the father had boasted to others that he lavished his daughter with love and material items, when the exact opposite was true.

The probate court found that, although in 1818, when the will was made, the father’s behavior was usual in all respects, except toward his daughter, his warped thinking about her was a delusion that “did and could only proceed from, and be founded in, insanity.” Dew, supra, 162 Eng. Rep. at 430. The court further found that the father’s “partial insanity” or “monomania” — insanity about a particular subject — about the evil nature of his daughter had caused him to disinherit her. On that basis, the court held ²⁷⁴ that the father had been without testamentary capacity when he made his will, and set the will aside.

Within a few years of the decision in Dew v. Clark, the insane delusion rule made its way into will contest cases in the United States, first appearing in the Maryland law of estates and trusts in Townshend v. Townshend, 7 Gill. 10 (1848). 2 Since then, appellate opinions about the insane delusion rule have been a rarity in this state — with seven squarely addressing the issue, the last of which was published by the Court of Appeals in 1973. In the case before us, James J. Dougherty, IV (“Jay”), the appellant, invoked the insane delusion rule before the Circuit Court for Harford County, sitting as the Orphans’ Court, in an effort to set aside the June 9,1998 Will of his father, James J. Dougherty, III (“James”), the decedent, which disinherited him. Jay is James’s only child. According to Jay, James’s Will was the product of an insane delusion that Jay had stolen his money.

The Will named James’s sister, Janet C. Ruben-stein, the appellee, personal representative (“PR”) of James’s estate and bequeathed virtually all of James’s assets to Rubenstein and his two other sisters, Elizabeth J. Hippchen and Dorothy D. Schisler. The estate was comprised mainly of James’s house, valued at about $200,000. 3 ²⁷⁵ James died on October 29, 2004, at age 59, of congestive heart failure. On December 10, 2004, Jay filed a petition for judicial probate in the Circuit Court for Harford County, sitting as the Orphans’ Court, asking that he be named PR of the Estate, in place of Rubenstein, and that the Will not be admitted into probate. He filed a list of interested persons that included his three paternal aunts.

On December 14, 2004, Rubenstein delivered a copy of James’s Will to the Register of Wills. 4 On February 17, September 29, and September 30, 2005, the orphans’ court held an evidentiary hearing on the issue of whether James had had the requisite testamentary capacity to make his Will. Three witnesses, including Rubenstein, testified so as to establish the existence of the Will. Jay then went forward with his evidence challenging the Will; he testified and called six witnesses. In rebuttal, Rubenstein testified and called six rebuttal witnesses.

The evidence, viewed in a light most favorable to the verdict, showed the following. James and Jay had a rocky father-son relationship over the years. When Jay was a teenager, James divorced Jay’s mother. That led to a four-year estrangement between the two, beginning in 1986, when Jay was 18 years old.

In 1990, at the urging of a friend, Jay reinitiated contact with his father. The two were close for the next seven years. During that time, Jay talked to James by telephone daily and visited him regularly. On October 26, 1990, James executed a Last Will and Testament that appointed Rubenstein as PR and left his estate to Jay.

Throughout the 1990’s, James’s health deteriorated due, in large part, to alcohol abuse. 5 On several occasions, he experi ²⁷⁶ enced breathing difficulties that necessitated a trip to the emergency room. Eventually, he developed a dependency on certain prescription narcotics. At one time, he was admitted to an in-patient substance abuse program, but left before completing it. On March 20, 1996, James executed a Power of Attorney appointing Jay as his attorney-in-fact.

On January 11, 1997, James designated Jay as the primary beneficiary of his life insurance policy. 6 The chain of events most immediately relevant to the issue on appeal began on December 9, 1997, when James suffered a minor stroke and was admitted to Fallston General Hospital. He was diagnosed with congestive heart failure and dilated cardiomyopathy (an enlarged heart caused by alcohol abuse). During the hospitalization, James often was disoriented and confused and had trouble expressing himself and understanding what was being said to him. He was rarely oriented to where he was or what day or time it was.

On December 18, 1997, the doctors at Fallston General transferred James to Harford Memorial Hospital’s psychiatric unit for evaluation. James’s confused state of mind and inability to communicate persisted during his stay at Harford Memorial. His speech was garbled. He was observed to be prone to confabulation and paranoia.

Linda Freilich, M.D., an internist, was in charge of James’s medical care during his Harford Memorial admission. She diagnosed him with dementia. Dr. Freilich and a second doctor, Lakshmi P. Baddela, M.D., executed “Physician’s Certificate of Disability” affidavits, attesting that James was suffering from dementia, that the condition was “lifelong” or “permanent,” and that: [D]ue to the present condition of dementia, he is -without sufficient capacity to consent to the appointment of a guardian of his person and property and affairs or to consent to ²⁷⁷ the care and confinement of his person or the management of his property and affairs[.] Dr. Freilich recommended that James be placed in a nursing home. Jay and his wife Christy decided instead to place him in the Cantler’s Personal Care Home (“Cantler Home”), which the doctors referred to as a boarding home.

James adamantly objected, insisting that he be returned to his own house to live. On January 5, 1998, James was discharged from Harford Memorial and was transported to the Cantler Home. There, he was assigned a small private bedroom with access to a common area and to a bathroom that he shared with three other residents. The other residents of the Cantler Home were considerably older than James, who was 52.

By all accounts, James was miserable at the Cantler Home. He complained incessantly to his sisters, his mother, his friends, and Jay and Christy about being there. He told his sisters that he did not have access to the telephone because it was located in a locked area of the home. When Richard Hodges, an old friend, visited James at the Cantler Home, the first thing James said was that he wanted help to “get out.” James told him that the owners of the home kept the residents locked downstairs, even for meals.

James said he had asked Jay and Christy to “get me out of here,” but they would not, because they wanted “to keep me here.” James’s sisters and his mother visited him at the Cantler Home and were disturbed by the conditions they saw. James was in a small area sitting on a hard chair. The first thing he said when they walked in was, “Get me out of here before I go crazy like the rest of them.” One of the sisters sat on a chair not realizing it was covered with urine from another boarder. Every other day, Jay tried to visit James at the Cantler Home.

James “wanted nothing to do with [him],” however, because James was angry that Jay had placed him in the home instead of letting him move back to his own house. About a week after James moved into the Cantler Home, Jay and Christy left for an annual five-day ski trip with Christy’s ²⁷⁸ family. While they were away, Rubenstein removed James from the Cantler Home and returned him to his house. 7 When Jay and Christy returned from their trip, they learned that James was back at home. They went to see him.

Jay had started handling his father’s financial affairs when James was admitted to the hospital, and therefore was in possession of all of James’s financial records. Jay and Christy brought the financial records with them because James “needed to take [them] back over.” James lashed out at Jay, accusing him of stealing his money and saying that, to James, Jay “didn’t exist.” Jay tried to show James the financial records, to prove that nothing had been stolen, but James would not look at the records or listen to what Jay had to say. Over the next few weeks, Jay tried to reason with James, but James ignored him. He insisted that Jay had stolen money from him.

James told Jay, “As far as I’m concerned, you are dead.” That was the last time the two saw each other. On January 23, 1998, James executed a new Power of Attorney appointing Rubenstein as his attorney-in-fact. A week later, James came under the care of Richard DeSantis, M.D., for whom Rubenstein was working as a secretary. Dr. DeSantis is an internist and endocrinologist.

For the next two years, Dr. DeSantis treated James’s heart condition. According to Dr. DeSantis, James did not exhibit any symptoms of dementia aside from some minor speech difficulties, which could have been caused by his stroke. In late spring of 1998, James met with Ed Seibert, a lawyer and longtime friend, and asked him to draft a new will for him. 8 There was no evidence that anyone encouraged or ²⁷⁹ urged James to see a lawyer or assisted him in doing so. James went to Seibert’s office by himself.

Seibert testified that, when he and James met, James’s demeanor was “just as lucid as you and I.” He described his conversation with James as follows: It seemed to be perfectly normal up to a point. The point I am talking about has to do with the antipathy he generated or seemed to be suffering toward his son. I told him, Look — he didn’t want any part of his son in the Will. At that time I said, [’]Look, [James], you should consider this twice.

Don’t leave him out. Leave him something. Put his name in it. Do something.

You can’t, because he is your only heir, really.[’] So I did admonish him about that, but he was bound and determined to leave [Jay] out altogether.... I wanted to know why, and all he told me was that his son had cleaned out his bank account. I know nothing about how that was done. I am just saying what he told me. [Jay] also had placed him somewhere where he was virtually in a prison and he couldn’t get out, and it was a terrible thing for him, and it affected him badly.

So he didn’t want [Jay] remotely mentioned, or even indirectly referred to in that Will. So I did what he asked me to do. On June 9, 1998, James returned to Seibert’s office to execute his new Will. Seibert’s daughter, Heather, and his daughter-in-law, Susanne Reising, signed as witnesses.

Both described James’s demeanor that day as normal. According to Seibert, from what he saw, there was no reason to think that James was not competent to make his Will or that anyone had exerted undue influence over him to get him to change his Will. From 1998 until his death in 2004, James lived alone. There was much conflicting testimony about his mental state during those years.

The sisters, a nephew, and several family friends testified that James’s mental state improved dramatically once he left the Cantler Home and that, from then on, he ²⁸⁰ essentially cared for himself. Two family friends and Jay’s stepfather testified that James was not the same person he had been before the late 1997 hospitalizations, and that he required considerable outside assistance in his daily activities. The evidence showed that, during this time period, James drove a car, wrote his own checks, and dressed and groomed himself. Several witnesses testified that James devoted time to his favorite hobby of flying model airplanes.

James complained to almost all of his friends and family members that Jay had stolen his money. Fred Visnaw, the son of a close friend of James, witnessed many conversations between his own father and James about James’s belief that Jay had stolen money from him. On three occasions, Visnaw’s father tried to reason with James about these thoughts, but James’s mind was made up. On one occasion, Visnaw himself tried to intervene with James on Jay’s behalf, to no avail.

Another of James’s friends, Hodges, testified that James told him he was going to “cut [Jay] out” because Jay had stolen from him. Two of James’s sisters, Rubenstein and Schisler, also testified that they were aware that James thought that Jay had stolen money from him. The parties stipulated, however, that there was absolutely no evidence that Jay had ever actually stolen any money from James. James also continued to complain to many of his friends and family members that Jay had put him in the Cantler Home against his wishes.

He described the Cantler Home as a prison. He believed that Jay had sent him there to live permanently. James died on October 29, 2004, never having reconciled with his son. Jay was not notified of his father’s death.

There was no obituary published. Jay learned of his father’s death through a friend, in early December of 2004. 9 ²⁸¹ Drs. Freilich and DeSantis each testified at trial and opined about James’s mental state in the months before and after June 1998, when the Will was executed. Dr. Freilich opined that James was suffering from dementia; Dr. DeSantis opined that he was not.

In closing, counsel for Jay argued that the Will should not be admitted into probate because James made it while under the influence of an insane delusion, ie., that Jay had stolen his money. Counsel for Rubenstein argued that the evidence showed that James was competent to make the Will and that Jay had not met his burden to overcome the legal presumption that James was sane when he did so. The judge ruled from the bench. He found that when James was a patient at Harford Memorial in late 1997-early 1998, he clearly “had no capacity to execute a Will.” The judge rejected Dr. Freilieh’s opinion, however, that James had dementia and that it was permanent and progressive.

He found that, after James was released from the hospital, in early January 1998, he improved substantially, and was able to care for himself. He concluded that James’s recovery and ability to take care of himself for six years before he died were inconsistent with a diagnosis of permanent and progressive dementia; and that Dr. Freilich probably had mistaken the acute effects of the stroke and alcohol withdrawal for dementia. The judge further found that, when James executed the Will, on June 9, 1998, he “was lucid, he was coherent, he understood the extent of his assets and the object of his bounty, except for the [possible] issue of [an] insane delusion[.]” He then explained his understanding of that issue: Was this Will the product of an insane delusion? Even if [James] was competent by being coherent and lucid, if the Will was the product of an insane delusion, then the Will is invalid.

Here [James] had the belief that Jay stole from him, and if that was an insane, untrue delusion, that would, I think, invalidate the June '98 Will that disinherited his son, Jay. ²⁸² Under the law that’s been quoted to me and I have consulted, the delusion, or the wrong impression, ... the incorrect fact must be the product of a mental disease. The allegation that Jay stole from him came after [James] got out of the hospital. In point of fact, his son did not steal from him, and that was a false belief on the part of the testator. I think the false belief caused [James] to make a new Will disinheriting Jay, and [he] was also prompted by the fact that he was angry with his son for putting him in the Cantler home, and that was not a false belief.

Is the false belief that his son stole from him the product of a mental disease? That’s the question I have to answer. If it is, then it’s going to invalidate the Will. If it is not, then the Will stands, given the other findings I made.

(Emphasis added.) The judge reiterated that he could not accept Dr. Freilieh’s opinion about dementia and therefore “can’t go on and then say [James’s] irrational belief about his son’s theft was the product of a mental disease.” In all likelihood, the judge found, James’s incorrect belief about his son “was the product of a rigid personality and a stubborn mind.” The judge concluded: I think [James] made up his mind his son had done something wrong, and he just never was going to change his mind about that. But I don’t find that the evidence before me establishes that that delusion or incorrect belief was the product of a mental disease, so I will admit the Will of June 9,1998, to probate. On September 30, 2005, the orphans’ court issued a written “Judicial Probate Order” appointing Rubenstein PR of the Estate and admitting the Will to probate. The order was docketed on October 11, 2005.

Jay noted a timely appeal to this Court. 10 ²⁸³ DISCUSSION The sole issue for decision in this appeal is whether the trial judge erred in concluding that the Will was not the product of an insane delusion on the part of the testator. Jay argues that the court committed legal error by requiring proof not only that James was suffering from an insane delusion that produced the Will, but also that the delusion was caused by a mental illness. He further argues that the evidence adduced at trial compelled a factual finding that, when James made his Will on June 9, 1998, he was experiencing an insane delusion that he (Jay) had stolen his money; and that the Will was a product of that insane delusion. That being so, the court was obligated to set the Will aside.

Rubenstein counters that the orphans’ court properly rejected Dr. Freilich’s opinion that James had been suffering from dementia; and the evidence supported the judge’s finding that, on June 9, 1998, James was competent to execute the Will. Alternatively, Rubenstein asserts that, even if the orphans’ court erred in finding that James’s mistaken belief was not an insane delusion, that error was harmless, because the court also found that James’s decision to disinherit Jay was based in part upon a true belief: that Jay had placed him in the Cantler Home against his wishes. We review the factual findings of the orphans’ court for clear error. Shapiro v. Marcus, 211 Md. 83, 88-89 , 124 A.2d 846 (1956); Bourne v. Lloyd, 100 Md.App. 575, 581 , 642 A.2d 270 (1994).

Its legal conclusions, however, are reviewed de novo. “The standard, or test of testamentary capacity is a matter of law” while the question of “whether the evidence in the case measures up to that standard is ... a matter of fact[.]” Johnson v. Johnson, 105 Md. 81, 85 , 65 A. 918 (1907). “A will, although facially valid, cannot stand unless the testator was legally competent.” Wall v. Heller, 61 Md.App. 314, 326 , 486 A.2d 764 (1985); see also Md.Code (2001 Repl.Vol.), § 4-101 of the Estates and Trusts Article (“ET”) (stat ²⁸⁴ ing “[a]ny person may make a will if he is 18 years of age or older, and legally competent to make a will”). The law presumes that every person is sane and has the mental capacity to make a valid will. Wall, supra, 61 Md.App. at 327 , 486 A.2d 764 ; see also Sykes, Contest of Wills, § 63 (1941); cf. Richard A. Lord, 5 Williston on Contracts, § 10:8 (4th ed.) (contracting party presumed to have capacity). To rebut that presumption, one challenging a will for lack of testamentary capacity must prove either that the testator was suffering from a permanent insanity before he made his will, and therefore would have been insane when he made the will; or, although not permanently insane, he was of unsound mind when he made the will.

Wall, supra, 61 Md.App. at 326-27 , 486 A.2d 764 ; Slicer v. Griffith, 27 Md. App. 502, 510 , 341 A.2d 838 (1975). The latter inquiry is to be decided from an assessment of the testator’s external acts and appearances at that time: It must appear that at the time of making the will, [the testator] had a full understanding of the nature of the business in which he was engaged; a recollection of the property which he intended to dispose and the persons to whom he meant to give it, and the relative claims of the different persons who were or should have been the objects of his bounty. Ritter v. Ritter, 114 Md.App. 99, 105 , 689 A.2d 101 (1997) (quoting Sykes, supra, at § 61). A testator’s “insane delusion,” also called “monomania,” is in the law a type of unsoundness of mind that will invalidate his will, for lack of capacity, if the delusion produced the disposition made in the will.

The testator’s delusion must have been insane and his will must have been a consequence of the insane delusion, however. Benjamin v. Woodring, 268 Md. 593, 601 , 303 A.2d 779 (1973). See also Sellers v. Qualls, 206 Md. 58, 66 , 110 A.2d 73 (1954) (holding that testatrix’s delusion that her sister tried to poison her, even if insane, did not control the making of her will and therefore will would not be set aside on that basis); Brown v. Fidelity Trust Co., 126 ²⁸⁵ Md. 175, 182-83, 94 A. 523 (1915) (holding that even if grantor of trust was operating under an insane delusion when she disposed of certain property, the trust would not be set aside because there was no evidence that the trust resulted from the delusion). The Court of Appeals has said that an “insane delusion” is “a belief in things impossible, or a belief in things possible, but so improbable under the surrounding circumstances, that no man of sound mind could give them