Mental Health Experts

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Mental Health DoctorAs a trust litigation attorney in Sacramento, I often make or defend against allegations of undue influence in the context of a trust amendment that favors one beneficiary over another. In this setting, what is the proper role of a mental health expert, such as a forensic psychiatrist, with regard to evaluating undue influence? Last February I wrote on this issue, discussing my recent experience in the probate department of San Joaquin County Superior Court.

An article entitled “Assessing Undue Influence,” in the September 2016 issue of The Journal of the American Academy of Psychiatry and the Law, takes up the subject. Written by two psychiatrists, Daniel A. Plotkin and James E. Spar, and an attorney who litigates trust/estate disputes, Howard L. Horwitz, the article seeks to sharpen the focus for mental health professionals who take the witness stand in undue influence cases in the context of testamentary instruments, such as wills and trusts.

Mental Health ConceptAt the start of trial recently in San Joaquin County Superior Court in Stockton, I sparred with opposing counsel over the role of the retained mental health experts with regard to testimony on undue influence. The contestant alleged that her brother unduly influenced their parents to disfavor her when they amended their trust. Sister retained a neuropsychologist to testify at trial on the subject of undue influence and Brother retained a forensic psychiatrist. Not surprisingly, the experts took divergent views on the case.

The question, which came before the judge in a motion in limine (i.e., pre-trial motion), was whether the retained experts should be allowed to testify on the ultimate issue of whether Mom and Dad were unduly influenced. Sister wanted her expert to be able to opine that her parents were victimized based on the expert’s review of the medical records and deposition transcripts. The judge agreed with Brother’s argument that, while the experts could testify on the issue of Mom and Dad’s vulnerability to undue influence, expert testimony on the issue of whether undue influence actually occurred would be excluded and that matter instead would be left for the judge to decide after hearing all the evidence.