Elder Law FAX -- October 31, 2005

Testator's "Insane Delusions" Do Not Invalidate Will
On December 20, 1997, Clifford Miller Russell executed a holographic will (that is, in his own handwriting), which reads as follows:

The last Will and Testament of C M Russell. This will supersedes
[sic] any & all wills made before - first, I name Susan Irene Russell
my daughter Exec[u]trix of my will free from any costs and for her to
distribute assets as she sees fit except as follows:
I leave all my properties and money to Susan Irene Russell except:
1000.00 (one thousand) to Clifford W. Russell (son),
1000.00 one thousand to John Hall Russell my son
There are 2 Insurance Policies with them as beneficiarys [sic]
All my Personal belongings to my Daughter Susan Irene Russell to do
with as she sees fit.
My interest in a Bldg[.] at 5205 Harding Road Nashville TN - to
Susan Irene Russell-
Signed this 20th Day of December 1997-
CM Russell /S/

Mr. Russell died on November 26, 1998. Following her father's death, Susan Russell offered this will for probate in the Davidson County, Tennessee, probate court. Mr. Russell's two sons, Clifford and John, filed a petition to contest their father's will on the grounds that Mr. Russell lacked "testamentary capacity" to make a will.

Specifically, they alleged that their father had "insane delusions" about his money and property and how he had accumulated his wealth, that demonstrated that he lacked the mental capacity to make a will.

(If the sons could prove their case, their father would have died intestate -- that is, without a will -- and therefore his three children would share in his estate equally.)

The capacity to make a will is the comprehension of "the property being disposed of, the manner of its distribution, and the persons receiving it." As this case turned on Mr. Russell's capacity -- or alleged lack thereof -- of his ability to make a legal will, in order for the court not to admit the holographic will to probate, the sons were required to prove that Mr. Russell failed in any of these three elements.

What sort of proof must be introduced to convince the trier of fact -- in this instance, Judge Randy Kennedy, the probate judge -- that Mr. Russell lacked testamentary capacity?

The two sons relied in part upon evidence of Mr. Russell's delusions as proof of Mr. Russell's lack of testamentary capacity. They argued that their father suffered from insane delusions about both his ability to regain ownership of property that had been awarded to his former wife, and about his uncompensated role in accumulating the family's wealth.

Specifically, the sons offered proof that Mr. Russell suffered from an "insane delusion" based on evidence that he believed he could regain ownership of property that had been awarded to his former wife in divorce proceedings in 1974. In his will of December 20, 1997, Mr. Russell wrote, "My interest in a Bldg[.] at 5205 Harding Road Nashville TN - to Susan Irene Russell."

His sons contended that Mr. Russell's belief that he had been wronged when he lost possession of the Harding Road property to his wife and that he could institute legal proceedings to regain the property more than twenty years after the divorce, and only after his ex-wife' death, is evidence of unreasonableness associated with an insane delusion.

The sons also asserted that Mr. Russell suffered from insane delusions about his uncompensated role in accumulating the family's wealth. In a letter dated May 14, 1994, to his daughter Susan Russell, Mr. Russell stated, "I have worked hard all my life . . . to add to the wealth of this family with no compensation. I have built 80% of the buildings at no profit, and made 100% of the sales and rentals since 1950."

According to Mr. Russell's sister Juanita McClanahan, however, her brother's statement in this letter, with respect to building the family's wealth, simply was not true. Mr. Russell's claim that he had added to the family wealth and not been fairly compensated is false and unreasonable and, as such, asserted his two sons, evinces an insane delusion.

What is an "insane delusion"? Under Tennessee law a person is said to suffer from an insane delusion "when he conceives something extravagant or unreasonable to exist which has no existence except in his own abnormal imagination, but having once conceived the thing or condition[] to exist, it is impossible to reason him out of it."

Despite Mr. Russell's beliefs -- or delusions -- about his property, probate judge Kennedy upheld the holographic will, stating that "isolated acts of irrational behavior or poor judgment are insufficient to lead the Court to conclude that the testator lacked capacity to execute his last will and testament on December 20, 1997."

Judge Kennedy's findings and order upholding Mr. Russell's will were affirmed on appeal to the Tennessee Court of Appeals.

Russell v. Russell, October 7, 2005.

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