April 27, 2018 With over 70 million Baby Boomers retiring, elder financial exploitation has been labeled the “Crime of the 21st Century.” In this half-day event, we will explore the neuroscience, psychology, and legal doctrine of financial decision-making in older adults. How does the aging brain make financial decisions, and when is it uniquely susceptible? How can courts best use science to improve their adjudication of disputes over “competency”, “capacity”, and “undue influence”? Is novel neuroimaging evidence of dementia ready for courtroom use? This conference brought together experts in medicine, science, and law to explore these important questions and chart a path forward for dementia and the law. For more information, visit our website at: http://petrieflom.law.harvard.edu/events/details/our-aging-brains

1. Dementia and the Law:
Challenges and Opportunities
RAY D. MADOFF
BOSTON COLLEGE LAW SCHOOL
Our Aging Brains: Decision-making, Fraud, and Undue Influence
April 27, 2018

2. What role does the mind play in the law of
testamentary transfers?
At first glance, everything

3. Organizing Principle under American
Law: Freedom of Testation
“The organizing principle of the American law of donative
transfers is freedom of disposition, Property owners have
the nearly unrestricted right to dispose of their property as
they please.” (Restatement Third of Property) (emphasis added)

4. Rules about mental capacity and undue
influence are theoretically designed to
fulfill freedom of testation by addressing
internal and external impediments

5. Relevant Legal
Doctrines
• Lack of Mental Capacity
• Insane Delusion
• Undue Influence
• Fraud
• Duress

6. Very Low Standard for Mental Capacity
A testator need only have “enough knowledge about
the nature and extent of his estate to form a rational
desire as to the disposition of his property”
Webb v. Reeves, 791 S.E.2d 35 (Ga. 2016)

7. Varying degrees of capacity
• Lee v. Lee: a person under a conservatorship signed a deed
and wrote a will on the same day – the deed was void, but
the will was valid
• Estate of Park: a person may have insufficient capacity to
make a will, but still have capacity to marry.

8. Special Challenges for the Doctrine of
Undue Influence
Undue influence at first glance seems to be a doctrine of
mental state:
“Undue influence invalidates a will when it is the result of
any action that subverts the will of the testator and
replaces the will of the testator with that of the one
influencing.”

10. Paradigmatic Case of Undue Influence
Testator gives property to nurse of 3 months and disinherits family

11. But how does the law discern whether
the action reflects the will of the
testator or the will of another?

12. Undue Influence Test
(1) A confidential relationship existed between the testator and the
person allegedly exercising the influence;
(2) The confidant played some role, however indirect, in the
formulation, preparation, or execution of the will;
(3) The testator was susceptible to undue influence; and,
(4) The testator made a testamentary gift to the confidant which was
unnatural.

13. Two More Cases:
o In re Robert Kaufmann
o Estate of Lakatosh

14. Insane Delusion – a false conception of
reality that a testator of a will adheres to
against all reason and evidence to the
contrary.

15. In re Strittmater’s Estate, 53 A.2d 205 (N.J. 1947)
“The question is whether Miss Strittmater’s will is the product of
her insanity. Her disease seems to have become well developed by
1936. In August of that year she wrote “It remains for feministic
organizations like the National Women’s Party to make exposure of
women’s “protectors” and “lovers” for what their vicious and
contemptible selves are…” I think it was her paranoiac condition,
especially her insane delusions about the male, that led her to
leave her estate to the National Women’s Party. The result is that
the probate should be set aside.”

17. ARTICLE THREE: I give, devise and bequeath all the
rest, residue and remainder of my estate, both real and
personal, of which I shall die seized or possessed, or to
which I shall be in any way entitled, or over which I then
have any power of appointment, to the AMERICAN CIVIL LIBERTIES
UNION. It is my wish that the American Civil Liberties Union
use the above bequest to curb the unconstitutional excess of
power now existing in the United States Public Health Service.
The current epidemic of heart disease and cancer is caused by
a pathogen (melanconium bambusae) that was introduced into the
United States by the United States Department of Agriculture
in 1908 and was knowingly shipped around the nation to cover
up government involvement in this disaster. The United States
Public Health Service violates the civil rights of any citizen
who dares to criticize the government on this matter.

18. Questions?
Thank you!
Email: ray.madoff@bc.edu