Social Perception of Testamentary Capacity — Tess Wilkinson-Ryan

Post by Tess Wilkinson-Ryan

I am teaching Trusts and Estates this semester, and we are currently covering standards for testamentary capacity. As a psychologist, I have a passing interest in cognitive ability and disability, but even moreso an interest in perceptions of capacity. A nice example of a case about social perceptions of mental health is In re Wright’s Estate, an appeal from a refusal to probate the will of Lorenzo Wright on the basis of testamentary incapacity. As in many cases in this course, the case turns on rather exquisite details of human interaction. The court heard from a parade of concern trolls, each attesting that the testator was “not of sound mind.” To wit:

• He once gave his neighbor a fish he had caught that turned out to have been soaked in kerosene; “he asked her how she liked it and laughed.”
• He went to this same neighbor’s house “and insisted on buying her household furniture and when told it was not for sale and that she had not offered it for sale he insisted on buying it anyway.”
• He “picked up paper flowers from the garbage cans…and pinned them on rose bushes in his yard and took the witnesses to look at his roses.”
• Per his granddaughter: he “told a number of persons that he had send Christmas presents and a turkey to them when he had not done so…one time he told her she had on too much rouge and powder or paint, when she did not have any amount on.”

On my first reading of the case, I was so taken with the offbeat genius of the testator’s disruptive sense of humor that I missed the judge’s astute rebuke to the lay psychologists in his court: “Testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral or mental irregularities or departures from the normal.”

In fact, the opinion brought to mind a set of social perception studies from the early days of experimental psychology, on personality impression. The gist of the studies (e.g., Asch, 1946; Anderson, 1965) was that the impressions we form of one another depend critically on framing, in particular on the order of information. Solomon Asch, a founder of the field of social psychology, asked subjects for their impressions of a man described as “intelligent, industrious, impulsive, critical, stubborn, and envious.” The subjects said (more or less) that he seemed like a productive citizen with common foibles. By contrast, subjects who read about an “envious, stubborn, critical, impulsive, industrious, intelligent” man were more likely to imagine someone with near-sociopathic tendencies. It is hard to imagine testimony about normal interactions with Lorenzo Wright that might undo the work of a few choice introductory anecdotes—perhaps the underlying worry that motivates the court’s (and arguably the law’s) skeptical approach to evidence of incapacity.