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Founding partner, Michael D. Rudy, discusses the “lucid interval” and explains that the occurrence of a lucid interval in moderate or advanced dementia cases is wholly unsupported by medical science

Recently, my firm was involved with a case in which a petition was filed in the probate court alleging that the testator (maker of the will or trust) was severely stricken with advanced dementia and Alzheimer’s disease when he had executed his trust instruments. An argument was made that the trust documents were patently void due to the testator’s lack of testamentary capacity when said trust documents were executed. The court declared that competency is difficult to ascertain and stated “you know we all have our good days and bad days when we sign documents.” This statement observation has virtually no basis in neurocognitive science.

Research over the last several decades has not supported the fact that patients with advanced dementia, particularly those with Alzheimer’s disease, are capable of having “good days and bad days.”

There are several basic presumptions concerning the execution of a will or trust. One of the most important is that the testator was competent at the time of the execution of the trust or will. That is to say that he or she had testamentary capacity and acted with his or her own free will and without being subject to improper undue influence. We explain testamentary capacity in detail on our MacDonaldRudy.com website [here].

The law generally states that whenever a lack of testamentary capacity has been established at the time of execution of the will or trust, the burden shifts to the proponent of the will or trust to prove the will or trust was executed during a “lucid interval.”

The concept of a “lucid interval” has existed since at least early Roman times, when the idea of oral or written instruction as to the disposition of one’s property was recognized. In modern times, the definition of a “lucid interval” has been described as “a temporary period of rationality or neurological normality” such that a person has “sufficient intelligence, judgment and a will to enter into a contractual relation or perform other legal acts without disqualification by reason of disease.”

For at least 150 years courts have held that a “habitual insanity” condition would leave the patient incapable of executing a contract or performing other acts with no ability to enter into a “lucid interval.” However, any disease or condition described as causing “recurrent sanity” meant there were “lucid intervals” during which the patient could capably execute contracts, wills or trusts. This often begs the question of what precisely constitutes “habitual insanity” or “recurrent sanity.”

Some of the earliest legal cases go back as far as the 1880s, where a “completely demented” testator was capable of having a lucid interval. Surprisingly, someone suffering from the condition known as melancholia (which modern psychiatry refers to today as depression) was actually incapable of experiencing a lucid interval since it was deemed habitual or incurable. In other words, someone suffering from depression was automatically and permanently deemed to lack the testamentary capacity execute a will or trust instrument.

All these prior legal pronouncements and rulings, while seemingly lacking in fundamental understanding today, are forgivable given that the birth of forensic psychiatry (the branch of psychiatry which bridges the fields of medicine, mental health and civil and criminal law) did not occur until the late nineteenth century. Forensic psychiatry is still in its infancy, as it only began to be employed in the law in the last few decades after World War II. Therefore, many forensic concepts today, including the “lucid interval,” are still poorly understood and misapplied.

Thus, while it is true that dementia patients can be more alert and more responsive in certain periods of day (such as the morning rather than a mid or late afternoon period) the ability of advanced dementia patients to perform at higher levels of abstract thought is severely lacking. On the other hand, persons suffering from a depressive state, delirium, psychosis, schizophrenia, alcohol and drug use, diabetes, and other such illnesses can and may experience lucid intervals.

Nevertheless, courts have mistakenly allowed evidence of lucid intervals in many moderate or advanced dementia cases where the potential for a “lucid interval” is arguably wholly unsupported by medical science.

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