Background
Thomas Bartunek executed a 2011 will leaving 50% of his estate to an animal fund named after himself and his wife Anna, with the remainder divided among his son David and grandchildren. When Anna died on Christmas Day 2015, Thomas exhibited significant cognitive decline. His primary care physician documented mild cognitive impairment by March 2016, noting disorientation to person, place, and time. Medical records from June 2016 indicated dementia and eventual Alzheimer’s diagnosis.
After Anna’s death, Thomas’s brother Rudolph and niece Michelle became involved in his affairs. They brought Thomas to attorney Wade Jensen to execute a power of attorney in April 2016. Following an unsubstantiated theft allegation against David (made by Michelle to police), Rudolph and Michelle were appointed as Thomas’s coconservators on June 21, 2016. Six days later, Thomas executed a new will leaving his entire estate to Rudolph alone, excluding his son, grandchildren, and the animal fund. Thomas died in November 2018 with documented Alzheimer’s disease and dementia.
The Probate Court initially admitted the 2016 will. David and Michael appealed to Superior Court, which reversed after a three-day trial, finding both lack of testamentary capacity and undue influence. Rudolph and Michelle appealed to the Connecticut Appellate Court.
The Court’s Holding
The Connecticut Appellate Court affirmed the Superior Court’s judgment, holding that Thomas lacked testamentary capacity when executing the 2016 will and that it was the product of undue influence. On the capacity issue, the court found that the proponents of the 2016 will (Rudolph and Michelle, as defendants) failed to meet their burden of proving Thomas had capacity at execution. Medical evidence showed a documented decline beginning at least in 2011, with specific cognitive impairment (MMSE score of 21 out of 30, indicating impairment) documented weeks before the will’s execution. Critically, the disposition was “unnatural”—Thomas cut off his grandchildren entirely and eliminated the animal fund, despite explicitly valuing his animals and family in his 2011 will and telling his physician that animals mattered to him more than anything.
The court found attorney Jensen’s conduct deficient: he had not met with Thomas outside the defendants’ presence for more than a few minutes, was unaware of the 2011 will, did not review Thomas’s medical records or Alzheimer’s treatment, failed to document or assess Thomas’s mental state, and had previously represented Rudolph without disclosing this conflict or his prior relationship to the defendants. The court noted Jensen’s testimony was unreliable, with little independent recollection of events surrounding the will’s drafting.
On undue influence, the court found all required elements satisfied: Thomas was susceptible due to documented cognitive impairment and grief over Anna’s death; the defendants had opportunity and motive, having just been appointed coconservators; they controlled access and finances; and the extreme change in disposition—from favoring family and animals to giving everything to Rudolph alone—evidenced the influence’s effect. The court rejected the defendants’ arguments that mere opportunity was insufficient, finding the totality of circumstances established undue influence.
Key Takeaways
- Attorneys executing wills for elderly clients with any signs of cognitive decline must meet with the testator independently (outside the presence of interested parties), review medical records, assess mental state contemporaneously, and document their findings.
- Even if an attorney believes a testator is competent, courts will examine medical evidence, prior wills, the disposition’s “naturalness,” and the timing of the will against evidence of capacity decline.
- Undue influence can be inferred from circumstantial evidence—including appointment as conservator immediately before will execution, control of access and finances, and a disposition radically inconsistent with the testator’s documented values and prior testamentary intent.
- Burden of proof lies with the proponents of a will to establish testamentary capacity; the burden may shift to will proponents (rather than beneficiaries) when a stranger or close relative is the primary beneficiary and natural objects of bounty are excluded.
Why It Matters
This decision reinforces heightened scrutiny of wills executed during periods of cognitive decline, particularly when drafted by interested family members or their attorneys. It establishes that attorney diligence is not a mere formality but a substantive protection against invalidity. Courts will not defer to an attorney’s conclusory statement of competency if the attorney failed to perform basic due diligence—specifically, independent assessment, review of medical history, and comparison to the testator’s prior documented wishes.
The ruling is significant for elder law practitioners and fiduciaries. It demonstrates that conservatorship appointments do not confer capacity for will execution and may, in fact, raise red flags when followed closely by the execution of a will favoring the conservator. The decision protects vulnerable testators by allowing courts to reconstruct intent from circumstantial evidence, including the radical departure from a testator’s established donative pattern and documented values. Attorneys who fail to take reasonable precautions when a client’s capacity is questionable face significant litigation risk.