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Deathbed Will + Deathbed Marriage + Morphine + Delirium = Valid Will

Supreme Court of Maine Approves Will Prepared By Social Worker for Decedent on Deathbed and on Morphine.

In Estate of Hamel, 2014 ME 75 (Me. June 10, 2014), the Maine Supreme Court approved of a deathbed will in Maine executed by Ruth O’Brien-Hamel.

Ruth died at age 55, from lung cancer. She was in and out of a hospital in the weeks before her death, in an end stage condition. Two days before her death, she was transferred from the hospital to a hospice. The day before she died, Ruth told a social worker she wanted to make a will in favor of her boyfriend of the past several years. The social worker prepared the deathbed will that Ruth then signed. Later that day, Ruth and the boyfriend were married. Ruth died the next day.

Medical Evidence In Favor of Testamentary Capacity (Valid Will)

The medical evidence presented by the boyfriend, in favor of capacity, was as follows:

Dr. Austin acknowledged that certain aspects of the medical records raised concerns as to Ruth’s capacity. He conceded that Ruth experienced some delirium while at the hospice, but testified that delirium would not necessarily render a person incapable of knowing what his or her assets are. He testified that morphine can affect cognitive abilities, but that it does not do so for most patients, and that the dosages administered to Ruth were low. Dr. Austin also acknowledged that Ruth’s sodium level was low upon her discharge from CMMC, that her oxygen level was low at certain points on October 26, 2012, and that these levels could have had an impact on her capacity.

Medical Evidence Against Testamentary Capacity (Invalid Deathbed Will)

The medical evidence presented by the family, who wanted to invalidate the deathbed will take intestate, is as follows:

Jennifer presented testimony from Dr. Kevin Kendall, who opined that the synergistic effects of Ruth’s sodium level, blood pressure, oxygen level, medications, pain, and imminence of death resulted in Ruth being incapable of normal judgment and reasoning during her stay at the hospice. In forming his opinion, Dr. Kendall reviewed the CMMC and hospice records, along with depositions taken in the case. He did not personally observe Ruth or speak to any hospice personnel. Dr. Kendall acknowledged that he could not determine, based on the medical records, Ruth’s sodium level, oxygen level, blood pressure, orientation to time and place, or pharmacological side effects at the time of the execution of the will.

The Execution of The Deathbed Will

The execution of the will was explained by the court as follows:

Eller [the social worker] testified that Ruth indicated that she wanted Donald to have everything and for him be the personal representative of her estate, but Eller could not recall how Ruth communicated this information, whether Ruth’s eyes were open, or whether she had a conversation with Ruth about the will or its effect on her children. Eller’s notes indicate that Ruth was “lethargic, but of sound mind and able to complete [a] simple will and sign it,” and that Ruth said “I want Don to have everything.” Eller testified that Ruth did not sign the first document presented to her, but did not testify to the substance of any adjustment made to the document before Ruth signed it. Lucienne Hamel, Donald’s mother and the only attesting witness who appeared at the hearing, testified that Ruth did not speak or open her eyes during the execution of the will, but nodded her head in the affirmative when Eller read her the will.

The Takeaway

The medical evidence and the evidence surrounding the execution of the will would seem to evidence a lack of testamentary capacity. Ruth’s body was essentially shutting from the cancer the day before she died, and she seemed to be in no position to comprehend what was going on. All she could do was nod her head when read the deathbed will.

Although the published opinion does not go into the medical evidence too greatly, it sounds like more evidence would have been helpful on the issues of what happens to the brain when the body is in the process of passing away. There is ample medical authority regarding how the bloodstream is essentially poisoned as organs shut down, leading to the brain being unable to properly function. That someone can nod does not mean understanding.

One lesson from taking a capacity case to trial is that the lawyer must try to present as much medical evidence as possible on the issues of capacity. There is strong science behind what happens to the brain in these circumstances, and it is not clear that such evidence was presented.

What must have played a role in the Court’s decision was its desire to do justice, as perceived by the Court. The Decedent was estranged from her children for several years prior to her death, which must have played some role in the Court’s decision.  Also, Ruth and the boyfriend had been living together for several years prior to her death, as opposed to him being a newcomer on the scene looking for an inheritance.  Therefore, even though this was a deathbed will executed under concerning circumstances, there was little evidence that Decedent would have preferred intestacy.

Finally, the appellate’s court’s role is not to weigh the evidence from scratch – that is the job of the probate court. Instead, the appellate court’s job is to determine whether the probate court committed error. In concluding that there was no clear error, the court reasoned as follows:

Contrary to Jennifer’s arguments on appeal, the court did not clearly err in finding that Ruth had the requisite testamentary capacity to execute a will. The record supports the court’s finding that, while at CMMC, Ruth was mostly lucid, was able to interact with others, and discussed executing a will. There was also competent evidence to support the court’s finding that although Ruth’s ability to verbally communicate was significantly impaired by the time she was admitted to hospice, Ruth was nevertheless able to interact with hospice personnel.
Although the court found that Ruth was experiencing some delirium, and there was evidence that factors such as her medications and low sodium and oxygen levels could have impacted her capacity, the court simply was not persuaded that Ruth lacked the modest level of competency necessary to execute a will.