Fleming & Curti, P.L.C. - Despite Dementia Diagnosis, Wyoming Man’s Will Is Valid

FEBRUARY 7, 2000 VOLUME 7, NUMBER 32

Despite Dementia Diagnosis, Wyoming Man’s Will Is Valid

Two years before Erwin W. Schlueter died in 1997 at age 85, he had completed his estate planning. He had signed a will, a durable power of attorney for financial matters and a durable power of attorney for health care. When his relatives contested the validity of the will, they pointed to the powers of attorney as evidence that Mr. Schlueter knew he was already incompetent to make his own financial decisions.

Mr. Schlueter and his wife Frieda had watched neighbor Chris Bowers grow up, and they were particularly fond of him. In 1994, Mr. Schlueter even named the youngster as alternate agent in his power of attorney, to take effect if Frieda should die before him. Mr. Bowers was only seventeen years old at the time.

There was no doubt that Mr. Schlueter suffered from dementia at the time he executed his powers of attorney and (later) his will. His relatives asserted that the mere fact of the dementia diagnosis should be evidence of incapacity, and that they should be permitted to make the case for invalidating his will to a jury. In addition, they argued, when Mr. Schlueter signed the immediately effective power of attorney he tacitly admitted his own incapacity even before the will was signed.

Mr. Schlueter’s doctor and the witnesses to the will all agreed that he was confused, and that his short-term memory was poor. Mr. Bowers argued that the mere fact of a dementia diagnosis was not enough to get the case before a jury, and that the family had to show more specific evidence of lack of capacity.

Mr. Schlueter’s relatives pointed to the will itself. It identified his mother as his mother-in-law, and vice versa. It also described him as the "testatrix," which would have made Mr. Schlueter a female. In response, Mr. Bowers submitted the affidavit of the secretary who prepared the wills for the Schlueters; she explained that she had prepared Mrs. Schlueter’s will first, and then switched names to make the identical will for Mr. Schlueter, and that the failure to switch "mother" and "mother-in-law" and to change "testatrix" to "testator" were her mistakes, not Mr. Schlueter’s.

The Wyoming Supreme Court reviewed the affidavits submitted and decided that there was insufficient evidence of incapacity to even submit the matter to a jury. The mistakes in the will, said the court, "demonstrate clerical carelessness rather than incapacity," and the mere diagnosis of dementia did not preclude a finding that Mr. Schlueter had sufficient capacity to sign his will. Finally, granting a power of attorney, even an immediately effective power, can not be construed as an admission of incapacity. Estate of Schlueter, January 11, 2000.

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