Theoretically, testamentary freedom serves as the hallmark of American law as it pertains to wills and estates.[1] When I say “theoretically,” I mean as a matter of praxis (as in its denoting an accepted practice or custom) rather than a matter of law. As to the latter, there should be no real dispute as to the reality of testamentary freedom as a matter of black letter law. In fact, the United States Supreme Court has decried regulatory destruction of “one of the most essential sticks in the bundle of rights that are commonly characterized as property – the right to exclude others." Similarly, the regulation here amounts to the abrogation of the right to pass on a certain type of property – the small undivided interest – to one's heirs. In one form or another, the right to pass on property – to one's family in particular – has been part of the Anglo-American legal system since feudal times.[2]

Oklahoma also recognizes the concept of testamentary freedom, albeit subject to legislative regulation.[3] Indeed, Oklahoma statutorily limited testators’ powers in a number of familiar ways, including spousal election, pretermitted heir provisions, formalities of form and execution, probate homestead and everyone’s favorite, the rule against perpetuities. Yet, overall, Oklahoma’s statutory inroads on complete testamentary freedom appear mild and benign in form and execution. For example, the Oklahoma Supreme Court in Matter of Estate of Lahr explained the policy behind requiring a ward to execute a will before a judge:

Here we are presented with a specific provision restricting the exercise of the ward's right to devise property. The provision requires a testamentary instrument to be executed in the presence of a district judge. Just as the provision restricting the right of the ward to enter into contracts was clearly intended to protect the ward from situations where undue pressures could influence the ward because of the ward's decreased physical capacity, so too does the provision restricting testamentary devise exhibit an intent to protect the ward from another situation where the ward might be subject to undue influence because of her physical condition. The legislation exhibits no intent to restrict the expression of the ward's wishes as to how her property may be distributed. The only requirement clearly appears concerned with preventing an atmosphere of undue influence at the time the testamentary instrument is executed.[4]

This describes the appropriate role for courts faced with the prospect of overruling the testator’s declared intent. Only in the clearest of cases should intervention occur. If intervention is necessary, we need to act to preserve the dignity of the elder and be cautious to not supplant the elder’s wishes with our own values and opinions even if protection from financial abuse may be needed.

Given this tradition of testamentary freedom, it should come as no surprise that Oklahomans enjoy a “nearly unrestricted right to dispose of their property as they please.”[5] The Restatement (Third) of Property further notes, “Law does not grant courts any general authority to question the wisdom, fairness, or reasonableness of the donor’s decisions about how to allocate his or her property.”[6] So, too, with Oklahoma. “The intention of the testator is controlling; when the Court construes a will, it must ascertain and give effect to the testator's intent, unless the intent attempts to effect what the law forbids.”[7] The Oklahoma Supreme Court has often stated that it is, in fact, the "cardinal rule" in the construction of wills to ascertain and give effect to the intention of the testator.[8] Our Supreme Court has also variously described this duty as the "primary objective,"[9] “paramount"[10] and the "object and prime purpose"[11] of will construction. It has also been held that "all rules of construction are designed for this purpose [to determine and give effect to the intent of the testator], and all rules and presumptions are subordinate to the intent of the testator where that has been ascertained."[12]

The recognition of the testator’s intent as the “gold standard” for judicial inquiry dovetails with the uniquely American veneration of traits such as individualism and control of one’s private property duly worked for and earned. Estate planning according to one’s own wishes, carries with it respect for self-worth and autonomy. For many older Oklahomans, particularly those of modest means, self-worth and autonomy are their most prized and valuable assets.[13] There are those who regard the right of testamentary disposition as a human right. For example:

The ability to make legally recognized decisions is fundamental to the exercise of human rights and is reflected in the core values of dignity, autonomy, participation and liberty. Respect for human rights requires that capacity be presumed absent evidence establishing incapacity. The process of capacity assessment also raises human rights issues as a determination of incapacity can have significant ramifications for the enjoyment of a person’s human rights. This is particularly the case where the assessment is triggered by ageist assumptions or fails to respect the person’s dignity or autonomy, or where it does not maximize their participation in the process as much as possible.[14]

INTRODUCTION TO SANISM

First, as to nomenclature, “sanism is an irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry.”[15] As Professor Michael Perlin, who is widely credited with importing the study of sanism from the realm of medical ethics into the field of law,[16] argues, sanism affects our jurisprudence and lawyering practices; it remains largely invisible and socially acceptable.[17] Sanism permeates all kinds of mental disability law, including involuntary civil commitment, the right to treatment, the right to refuse treatment, the right to sexual interaction, the Americans with Disabilities Act, the competence to plead guilty, the competence to waive counsel, the insanity defense and the federal sentencing guidelines, among others.[18]

To fully understand the impact of sanism on the law in general, we must also recognize sanism’s sidekick and constant companion, “pretextuality.” Professor Perlin explains:

“Pretextuality" means that courts accept (either implicitly or explicitly) testimonial dishonesty and engage similarly in dishonest (and frequently meretricious) decision-making, specifically where witnesses, especially expert witnesses, show a "high propensity to purposely distort their testimony in order to achieve desired ends." This pretextuality is poisonous; it infects all participants in the judicial system, breeds cynicism and disrespect for the law, demeans participants, and reinforces shoddy lawyering, blasé judging, and, at times, perjurious and/or corrupt testifying.[19]

In further describing the impact sanist thinking has upon the judicial system, Professor Perlin notes:

Judges reflect and project the conventional morality of the community, and judicial decisions in all areas of civil and criminal mental disability law continue to reflect and perpetuate sanist stereotypes. Their language demonstrates bias against mentally disabled individuals and contempt for the mental health professions. Courts often appear impatient with mentally disabled litigants, ascribing their problems in the legal process to weak character or poor resolve. Thus, a popular sanist myth is that "[m]entally disabled individuals simply don't try hard enough. They give in too easily to their basest instincts, and do not exercise appropriate self-restraint." We assume that "[m]entally ill individuals are presumptively incompetent to participate in 'normal' activities [and] to make autonomous decisions about their lives (especially in the area of medical care)."[20]

In the elder law context, sanism can combine with an often-related ism – ageism. As for the definition:

Ageism is the belief that the mental deterioration from age renders the elderly completely incompetent in all areas of their life. Out of a false sense of necessity, their wishes are transformed into our wishes or what we subjectively feel they would want. Too often we practice sympathy without empathy. The object of sympathy is the other person’s well-being; the object of empathy is understanding.[21]

In In re Citizens State Bank & Trust Co. of Hiawatha,[22] Mr. Nolte agreed to provide care and services to Helen M. Reller until her death should her financial resources be depleted to the extent that she could not provide for herself. Mr. Nolte further agreed to pay the expenses of her last illness and funeral if her estate was insufficient. In consideration, Ms. Reller executed and delivered to Mr. Nolte a warranty deed conveying to him a remainder interest in 400 acres of farmland, reserving a life estate to herself. Certain relatives of Ms. Reller became concerned about her attachment to Mr. Nolte and took steps to prevent him from visiting her. Her conservator filed suit to set aside the conveyance. The trial court found Ms. Reller mentally competent and aware of legal procedures in executing the deed and contract. The court further found that there was adequate consideration for the deed and contract, and the defendant did not unduly influence her. The appellate court took up the issue of "whether the imposition of the voluntary conservatorship without a finding of incapacity, deprived Ms. Reller of her capacity to contract and convey away her real property by deed during the conservatorship.” Reversing, the Kansas Supreme Court declared, "As all of us [grow] older, we gradually lose our faculties, both physical and mental. The longer we live and the older we become, the more we lose.”

Similarly, in In re LPS, a Delaware appellate decision upholding a guardianship procured without notice to the intended ward. In justification of the court’s decision, a judge opined:

Quite understandably, Mrs. S. resented a guardian being appointed for her property. She particularly resented the manner in which it was accomplished in that she had no notice of it until after it had been accomplished. Mrs. S., being in remarkably good health and active, was resentful of the implication that she is unable to handle her affairs and like most people her age probably does not accept the fact that at her age she does not have the same memory that she had at an earlier age. ... After hearing all of the evidence, I am of the opinion that due to the infirmities of old age, particularly forgetfulness, Mrs. S. is in danger of losing or dissipating her property and it would be in the best interest of Mrs. S. that the guardianship of her property be continued.[23]

Did sanism, ageism or a combination of the two drive these decisions? Certainly, the biased rhetoric in the opinions raises their specter.[24] In fact, if these statements did not describe a part of the courts’ reasoning for the outcomes, they would have no place in the opinion at all. Most significantly, for the purpose of this discussion, look at the myth that all types of cognitive abilities inevitably worsen with age. It is true that some cognitive skills, such as reaction times, tend to slow a bit over time. But other functions remain robust and even improve. One study of older adults, for instance, showed they were better than middle-aged adults at orienting their attention and ignoring distractions.[25] The decisions above prompt this question: Would the decisions be the same if the testators or proposed wards were in their 40s?

SANISM’S SIGNIFICANCE IN THE ESTATE PLANNING CONTEXT

One can readily see that concerns for the influences of sanism readily lend themselves to certain fields of mental health law, such as civil commitments, guardianships and competency to stand trial in criminal cases. However, “the validity of an analysis extending the theoretical construct of sanism from the areas of civil commitment and criminal law, in which it was developed, to the law of wills, is not self-evident.”[26] It is important not to lose sight of the distinction between estate planning and civil commitment and criminal laws. In the latter, the goal is to protect the subject of the suit or – in the criminal field – to determine whether, and to what extent, a person may be held culpable for their acts. In contrast, “the requirement of testamentary capacity ... serves to preclude certain individuals from exercising a choice that those deemed to possess the requisite capacity may and do enjoy, on the grounds that these individuals would not have chosen as they did if they possessed the necessary level of understanding.”[27]

Sanism mostly affects the “outlier” will – one that deviates from the expected societal norm and/or the atypical client holding somewhat eccentric or whimsical intentions.[28] Under sanist reasoning, the primacy of “testator’s intent” is subordinated to secondary consideration, such as “natural objects of a testator’s bounty and anchored to legitimacy by resort to formalisms”[29] or concepts such as undue influence, duress or other parens patriae notions. The latter devolve into pretextual justifications for sanist outcomes. In this manner, sanism appears remarkably like the Texas Sharpshooter Fallacy, so-called because the protagonist shoots holes in the side of a barn and then paints targets around the bullet holes. It goes hand in hand with the related fallacy of confirmation bias – concluding first then reasoning afterward to support it. In our context, the resort to sanism may be both benign and unconscious, but that doesn’t make it any less fallacious.

Oklahoma law does not provide for a “right to inherit” outside intestacy except in cases of spousal election and pretermitted heir statutes. In fact, many people seek estate planning to avoid the statutory regime. No legal requirement forbids a will containing an idiosyncratic, whimsical or objectively illogical disposition. In other respects, however, the law seeks orthodoxy and normalcy, for example, focusing on relatives and degrees of kindred.[30] In addition, “testators are presumed to intend to provide for the natural objects of their bounty.”[31] The further removed from the family-oriented norm, the more likely a successful challenge. For example, in Morris v. West’s Estate,[32] the testator left his entire estate to his ex-son-in-law to the exclusion of his daughter and grandchild. The court vacated the will on the basis that the witnesses were in different rooms when the testator brought his signed will to them for their signatures.[33]

Can It Happen in Oklahoma?

In re Maheras[34] holds, “A person who is not a beneficiary under a will’s terms may be regarded as legally capable of overbearing the will maker’s free agency.” But did that occur in this case? The opinion leaves room for skepticism.

Ms. Maheras, age 96, left the bulk of her estate to her church, leaving little to her nephew, her sole heir. The opinion says nothing about the relationship between aunt and nephew. In the 1970s, Ms. Maheras battled alcoholism. The opinion says nothing further about her physical or mental health when she executed the will. In the early 80s, she became friends with the Rev. William Cook. Ultimately, she joined his church. In the words of the court, “By 1984 all of Maheras’ friends were First Baptist church members.” The Rev. Cook arranged for several church members to regularly assist Ms. Maheras by cleaning her house.

In 1983, Ms. Maheras attended some estate planning programs at the church. She missed the final session. The Rev. Cook brought her the booklet from that event. He then spent several hours “assisting Ms. Maheras in cataloging her assets.” He also arranged for an attorney church member to draft the will. Both witnesses were also church members. The trial court found that Ms. Maheras had capacity, and she “understood the provisions of the will, appeared normal, and was aware of the nephew’s existence.” The trial court also found the witnesses disinterested. The Supreme Court, however, found Ms. Maheras’ “testamentary capacity to be a moot issue.”

Does Maheras represent a simple case of an appellate court affirming a trial court opinion not clearly at odds with the evidence? Or does it show how readily a case may fall prey to sanist bias? Here we have a testatrix with capacity, albeit an older person who is recovering from alcoholism (an atypical client, though one whose disability may have been more historical than contemporaneous) choosing not to leave her estate to a natural heir (nonnormative disposition) and putative influence of an interested purpose (availability of a pretextual reason to reject the testatrix’s decision in favor of a “natural object of her bounty”). In addition, based simply on the facts related in the opinion, the result seems at odds with, or at least less heedful of, the testator’s intent than with cases such as Canfield v. Canfield.[35]

In Canfield, the court held that “the word ‘undue’ when used to qualify ‘influence’ has the legal meaning of wrongful ... but influence acquired through kindness is not wrongful.”[36] More specifically:

• Suspicion, conjecture, possibility or guess that undue influence has induced a will is not alone sufficient to defeat the probate of a will.
• Power, motive or opportunity to exercise undue influence is not alone sufficient to authorize the inference that such influence has, in fact, been exercised.
• Undue influence that invalidates a will must be something that destroys the free agency of the testator when the instrument is made and executed and that in effect substitutes the will of another for that of the testator. It is not sufficient that the testator was influenced by the ordinary affairs of life or that he was surrounded by relatives and friends in confidential relations with him at the time of its execution.[37]

The Ethical Imperative

The ethical issues an attorney faces when dealing with estate plans cover a lot of ground and could serve as a topic for a separate article on their own. Issues of professional competence, zealousness and loyalty to clients come up repeatedly. In addition, the practice itself transcends all phases of a legal practice as set out in the preamble to the Code of Professional Responsibility. For example:

As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.[38]

Rather than engaging in a scattershot discussion of multiple rules and issues, I limit my discussion to Rule 1.14, providing, in pertinent part:

When a client's capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.

When taking on an atypical client,[39] Rule 1.14 requires an attorney to do a modified capacity assessment. Done correctly, this involves a two-pronged test. First is an assessment of whether the client has the capacity to enter an attorney-client relationship to begin with. Second, does the client have the capacity to engage in the transaction (estate planning) comprising the representation? This should be a broad-ranging, holistic inquiry with assumptions withheld until completion. For example, a client may lack the capacity for certain transactions yet retain testamentary capacity.[40] Once satisfied with both prongs of the capacity assessment, we must then look to the reasons for the atypical disposition to determine the best way to achieve the client’s goals. This exploration requires more than clinical professional skills. It demands emotional intelligence on the part of the lawyer as well. Making an adequate record is not just for litigators anymore.

CONCLUSION

The legal profession shoots itself in the foot when its thought process becomes burdened with a depreciative mythology to a subset of people, which tends to limit empathy, communication, compassion and creativity in the provision of quality legal services. The invisible nature and vague social acceptance of sanism make it difficult to appreciate in daily life and practice. Like many bad habits, once recognized, it becomes easier to suppress. This discussion is vital to the mission of both the bench and bar. From the bar’s perspective, it should be remembered that courtroom advocacy sometimes takes the nature of adult education, including the disabusing both bench and bar of myths and replacing them with empirical and evidentiary-based facts. Cognitive research now shows that implicit biases (those subconsciously held and not controlled by the conscious mind) cannot simply be set aside.[41] Their impact on cognition, behavior and decision-making ought to be equally important to the legal profession and can lead to a subconscious prejudice, subconsciously predetermining outcomes of judicial decisions, policy choices and even advocative zeal and case acceptance.

Finally, while this article addresses these issues from the perspective of probate and elder law, sanism and ageism occur in other fields of practice. Thus, recognition and understanding become essential to the realization of our constitutional promise that “the courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice.”[42] To do this effectively, we must acquire a thorough understanding of the subject matter. Hopefully, this article is a step in that direction.

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ABOUT THE AUTHOR

Richard J. Goralewicz graduated from King’s College and the OCU School of Law. After 21 years in private practice, he joined the Senior Law Project of Legal Aid Services of Oklahoma as a staff attorney in 2003. He has served multiple terms as chair of the OBA Appellate Practice Section and is a frequent speaker at state, national and international programs on elder law, appellate law and legal ethics.

 

 

 

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ENDNOTES

[1] Restatement (Third) of Prop.: Trusts and Other Donative Transfers §10.1cmt. a (2003); See also Robert H. Setoff, “Trusts, and Estates: Implementing Freedom of Disposition,” 58 St. Louis U. L. J. 643, 643 (2014) (“The organizing principle of the American law of succession, both probate and non-probate, is freedom of disposition.”).

[2] Hodel v. Irving, 481 U.S. 704, 716 (1987). CF United States v. Perkins, 163 U.S. 625, 629-30 (1898): "The law in question is nothing more than an exercise of the power which every state and sovereignty possesses of regulating the manner and terms within which property, real and personal, within its dominion may be transferred by last will and testament or by inheritance, and of prescribing who shall and who shall not be capable of taking it. ... If a state may deny the privilege altogether, it follows that when it grants it, it may annex to the grant any conditions which it supposes to be required by its not alone sufficient interests or policy." (Emphasis supplied).

[3] Matter of Estate of Chester, 2021 OK 12, 19, 497 P.3d 284; Matter of James, 2020 OK 7, 27, 472 P.3d 205.

[4] 1987 OK 94, 7, 744 P.2d 1267.

[5] Restatement (Third) of Prop.: Trusts and Other Donative Transfers §10.1cmt. a (2003).

[6] Id at cut c.

[7] Matter of the Estates of McClean, 2010 OK CIV APP 24,13, 231 P.3d 727; 84 O.S. 151 (2021).

[8] Lomon v. Citizen's National Bank & Trust of Muskogee, 1984 OK 68, 3, 689 P.2d 306, 308.

[9] Shippy v. Elliot, 1958 OK 126, 0, 327 P.2d 645.

[10] Matter of Kelsay, 1978 OK CIV APP 5, 5 579 P.2d 838 (pub. per OK. Sup. Ct.).

[11] Dannenberg v. Dannenberg, 1953 OK 201, 0, 271 P.2d 345.

[12] Arment v. Shriners Crippled Childrens Hospital, 1956 OK 53, 298 P.2d 1048 (Syllabus by the Court No. 1); Miller v. Hodges, 1951 OK 141, 231 P.2d 678; Panache v. Hawkins, 1950 OK 75, 222 P.2d 362; In re Adams' Estate, 1950 OK 201, 222 P.2d 366.

[13] For further reading, see S. K. Heide, “Autonomy, Identity And Health: Defining Quality Of Life In Older Age,” Journal of Medical Ethics 2022; 48:353-356 and Tienke Abma and Elena Bendien, “Autonomy in Old Age,” Family and Law (May 2004).

[14] See generally: Bridget Lewis, Kelly Purser and Kirsty Mackie, The Human Rights of Older Persons in Legal Capacity and Decision-Making, pp.139-173 (Springer Link 2020).

[15] Michael Perlin, The Hidden Prejudice: Mental Disability on Trial, (American Psychological Association, 2000).

[16] See Michael L. Perlin, “On Sanism,” 46 SMU L. Rev. 373 (1993); See also Morton Birnbaum, “The Right to Treatment: Some Comments on its Development,” in Medical, Moral and Legal Issues in Health Care, 97, 106-07 (Frank Ayd, Jr. ed., 1974) regarded as the seminal work on sanism.

[17] Perlin, n. 11 supra.

[18] Id., passim.

[19] Michael Perlin, "Half-Wracked Prejudice Leaped Forth: Sanism, Pretextuality, and Why and How Mental Disability Law Developed as it Did,” 10 Journal of Contemporary Legal Issues 3, 5 (1999) (quoting, in part, Michael L. Perlin, “Morality and Pretextuality, Psychiatry and Law: Of ‘Ordinary Common Sense,’ Heuristic Reasoning, and Cognitive Dissonance,” 19 Bull. Am. Acad. Psychiatry & L. 131, 133 (1991)).

[20] Perlin, supra. at Note 14, “Half-Wracked Prejudice,” at page 15.

[21] Heather S. Ellis, "Strengthen the Things That Remain: The Sanist Will,” 46 N.Y.L. Sch. L. Rev. 565, 568 (2002-2003).

[22] 601 P.2d 1110, 1115 (KS. 1979).

[23] In the Matter of L.P.S., C.M. No. 3793,1981 WL 15481, at *2 (Del. Ch. March 26, 1981).

[24] By way of further example, see Richard A. Posner, Aging and Old Age (1995) pp. 18-23 (arguing, inter alia advanced age heralds an "inexorable decline" both physically and mentally).

[25] J. Veríssimo, P. Verhaegen, N. Goldman, et al, “Evidence That Ageing Yields Improvements As Well As Declines Across Attention And Executive Functions,” Nat Hum Behavior 6, 97–110 (2022).

[26] Pamela R. Champine, “A Sanist Will?” 19 N.Y.L. Sch. J. Hum. Rts. 177, 179 (2003).

[27] Id.

[28] Exemplified in this author’s experience by a will leaving all to the staff of a diner where the client ate breakfast and lunch every day for some 30 years, to the exclusion of out-of-state cousins who had no contact for the same period beyond an annual Christmas card.

[29] Today, and particularly in this brave new post-pandemic world, many attorneys advocate for a relaxation or outright abolition of traditional formalities in the drafting and execution of wills. While many of these bear consideration, they lay beyond the scope of this article. See generally David Horton and Reid K. Weisbord, “COVID-19 and Formal Wills,” 73 Stan. L. Rev. Online 18 (2020-2021); Crystal Collins, “The Future of Electronic Wills in Rhode Island After COVID-19,” 27 Roger Williams U. L. Rev. 423 (2022).

[30] 84 O.S. 44 (2021).

[31] Matter of Estate of Richardson, 2002 OK CIV APP 69, 11, 50 P.3d 584.

[32] 643 S.W.2d 204 (Tex. App. 1982).

[33] Compare Nichols v. Rowan, 422 S.W.2d 21, 22-23 (Tex. Civ. App.-San Antonio 1967), essentially the same as Morris, supra. The Morris will was upheld notwithstanding defects and disabilities where beneficiary was an actual relative.

[34] 1995 OK 40, 897 P.2d 268.

[35] 1934 OK 43, 8, 31 P2d 152.

[36] Syl 3.

[37] Id. at Pars 8-10.

[38] Oklahoma Rules of Professional Responsibility, Preamble, Par. [2]. See also: “[6] As a public citizen, a lawyer of the law beyond, and its use for clients, employ that knowledge in reform of the law and work to strengthen legal education.” Id. at Par. [6] should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge.

[39] Rule 1.14 addresses the client suffering, or liable to be perceived as suffering, with diminished capacity. For purposes of this article, I am also including the client desiring an estate plan perceived as contrary to prevailing societal norms.

[40] See, e.g., Lee v. Lee, 337 So.2d 713, 714 (MS 1976). The testator executed the will and deed on the same day. The court upheld the will but invalidated the deed.

[41] Susan A. Bandes and Jeremy A. Blumenthal, “Emotion and the Law” (October 2012) Annual Review of Law and Social Science, 161 at 164; “Difference Blindness vs. Bias Awareness: Why Law Firms with the Best of Intentions Have Failed to Create Diverse Partnerships” (2015) 83 Fordham Law Review 2407.

[42] Oklahoma Const, art II, Sec. 6 (emphasis supplied).