When contesting or challenging a will, modern courts use the Greenwood-Baker Test to determine whether a decedent possessed sufficient testamentary capacity to execute a will. The Greenwood-Baker test comes from two English cases: Greenwood v. Greenwood (decided in 1790) and Harwood v. Baker (decided in 1840). In both cases, the English “Lords” deciding the cases appeared to exercise logical reasoning in their opinions. However, the question is whether the limited scientific knowledge of executive function and cognition from 1790 through 1840 should subsist as the standard of proof for modern will contest cases based on a lack of testamentary capacity.
The first case: Greenwood v. Greenwood
The Greenwood v. Greenwood will contest was tried on May 13, 1790. The plaintiff was a cousin, Abram Greenwood. The defendant, William Greenwood, was the brother and heir at law of the testator. The decedent had allegedly executed a will that called into question Abram’s inheritance. So, the will was challenged.
The justice who authored the Greenwood opinion made some insightful remarks. First, the author questions whether a reviewer would look at the will and “argue up from that to the sanity or insanity of the mind, instead of looking at that which is the real question . . . namely, whether the testator was of sound and disposing mind and understanding when he made his will?” Second, the author writes (a great quote): “Mankind are as capricious as they are many in number, and everybody knows that there is hardly a will made but goes some way to vary the succession appointed by the law of the land.”
Several interesting analogies can be drawn between this case from the late 1700s and present-day litigation. First, there were many witnesses called in this old case, so from the standpoint of trial length, I’m sure that this trial took up a considerable amount of court time (the parties called a total of 27 witnesses, listed at the end of this post). It seems not much has changed in that regard. Another interesting part of this case is that most of the evidence concerning the testator’s insanity or incapacity is from the year 1787. Although the opinion does not specifically state the date of death (I assumed it was 1787), this is interesting because the opinion and trial occurred in the year 1790. At that, modern courts at least seem to be getting to their will contest trials sooner than they were a couple hundred years ago.
Getting to the meat of this will contest, and in describing the logic and reasoning, the court writes that “if whenever his brother’s name occurred, instantly a fit of delirium had seized him, then I should conceive that he was not competent to make his will; but if his mind remained entire, if he had new raised up prejudices against his brother, though on improper grounds, yet if they were such prejudices as might reside in a sound mind, it is hard that those prejudices should lead to conclusions unfavorable to his brother; but hard as the case may be, it is better that a thousand hard cases should take place, then that we should remove the landmarks by which man’s property is to be decided.” The court goes on to say that it is for the jury to look at the conduct toward the brother to see whether it is evidence of a derangement of the mind or whether only an unreasonable prejudice which he indulged against his brother, and if it is the latter then the testator was not unfit to make his last will and testament. The court further writes that the jury is to consider whether the testator’s mind was “entire to make the disposition … [if] you think that whenever that topic occurred to him it totally deranged his mind and prevented him from judging of to the objects of his bounty should be, according to his own will, then the will cannot stand, and then you will find for the defendant; but if you think he was of competent mind to make his will-to exercise judgment-however that might be disturbed by passions which ought not to be encouraged, then the will ought to stand.” So this is the “object of bounty” language from where the modern jury charge derives! But, are those grounds in keeping with modern science?
The question is this: while the Greenwood test was sound in 1790 (perhaps), does that reasoning still describe a situation in which a testator lacks sufficient capacity to execute a will? Should our courtroom analysis be more specific and more refined after 230 years?
The Greenwood plaintiff called numerous witnesses, as follows:
One. Unidentified lifelong friend.
Two. Dr. Reynolds, treating physician.
Three. Rev. Pope, lifelong friend. Testified about decedents upcoming trip to Lisbon, Spain.
Four. Mr. Justice Heath, acquaintance of the deceased since 1784.
Five. Mr. Blencowe, a “gentle man of fortune and of undoubted respect and character in the neighborhood.” Saw the testator shortly before his death.
Six. Dr. Long, the decedents surgeon. Testified he saw no sign of derangement.
Seven. Mr. Conant, an acquaintance of the decedents at Cambridge University.
Eight. Mr. Dampier, a teacher of the decedent.
Nine. Dr. Ball, a neighbor who noticed no symptoms of a deranged mind.
Ten. Mr. James Wortham, a witness to the decedent’s behavior shortly before his death.
Eleven. Mr. Hill, an attorney who transacted business with the decedent.
Twelve. Dr. Freeman, familiar with the decedent from his cradle.
Thirteen. Mr. Skinner, talked with the decedent about a real estate deal.
Fourteen. Mr. John Whittington, transacted business within the city that shortly before his death.
Fifteen. Mr. Owen, witness to the decedents will.
The above witnesses were called in defense of the will. Although each of the witnesses testified that the decedent was of sound mind and exhibited no sign of incapacity, the court is careful to hold off any judgment until the defense witnesses are called. The defense called the following witnesses:
One. Mr. Hingerston, an apothecary. Testified he saw a shimmering fit from the decedent. Observed Dr. Pitcairn ordering treatment with bark.
Two. Dr. Pitcairn (appears to have been called, although the written opinion is unclear whether Dr. Pitcairn’s observations came from Mr. Hingerston or firsthand; logically, the observations would have come directly from Dr. Pitcairn).
Three. Dr. Budd, treating physician who testified the decedent had a fever accompanied with insanity. This witness testified that there was a peculiar wildness in his appearance; he says that from the appearance of his eyes he thought he was insane at that time.
Four. Mr. Price, an assistant of a person who receives “unfortunate people.” Price stayed 10 weeks with the decedent, who escaped one morning with a knife out of his bedroom window.
Five. Mr. Livie, an acquaintance of the decedent’s family for 20 years. Testified the whole family was in great distress upon their father’s death.
Six. Mrs. Evans, eyewitness.
Seven. The Rev. Thomas Jones, a tutor to Mr. Greenwood at Trinity College in Cambridge.
Eight. Mr. Wilkinson, a college acquaintance of the decedents in 1784.
Nine. John Bordieu, knowledge of the testator in the year 1774, who was with the decedent in London in 1786 and 1787.
Ten. Ms. Ann Walker, housekeeper to the decedent.
Eleven. Mr. Cawthorne, an acquaintance of the family.
Twelve. Mr. John Turner, a servant of the family for 20 years. Observed events during the final days of the decedent.
Like the characters called by both sides (not at all indifferent from a modern, will contest jury trial), the elements of an incapacity claim remain largely intact – despite the advances in technology and medicine. This blog will continue to examine this apparent incongruity.