After an 11-month struggle with esophageal cancer, Leonard R. Brener died on December 8, 2001, at age 85. He had never married. He had no children. He had a long and successful career as a stockbroker. The value of his estate was $8 million. Several

Question

nieces and nephews survived him. He had originally left nearly all of his estate to the Carroll Center for the Blind, the Perkins School for the Blind, and Beth Israel Deaconess Medical Center, Inc The gifts to these nonprofit organizations during Brener's life and through his will were made through detailed living, testamentary, and pour-over trusts. Brener said he did not understand all aspects of the trusts. During the last five weeks of his life he was hospitalized and drafted and executed the final version of his will, which made one niece and her husband the primary beneficiaries of his estate. The nonprofit organizations sought to have the will set aside for lack of testamentary capacity. During those five weeks of terminal illness, Brener spoke of suicide by jumping out of the window, complained of depression, and often complained to his lawyer that he did not understand all the estate planning tools that were being used in his will. The staff at the hospital testified that Brener did not seem confused and was aware that he was dying and wanted to be sure his affairs were in order. Discuss whether the will leaving his estate to the niece and her husband was valid.

Answer 1

?A lack of understanding of trusts and estate planning does not mean the testator does not understand who is getting his property and why. Also, thoughts of depression during a terminal illness are not evidence of a lack of mental capacity. The symptoms of illness and ravages of old age do not prevent testators from having capacity, something that requires proof that the testator knew what he/she was giving away and to whom and that the bequest has some underlying rationale. Brener was free to change the beneficiaries of his noblesse oblige from charities to his family - and this is true even though his family consisted of non-lineal heirs.