The issue of competence is quite often at the center of will contests. Until it can be proved otherwise, the mental competence of the decedent is presumed. Rebutting this presumption is entirely the burden of the objectant to a will — and it is a heavy burden to overcome, but sometimes there may be ways of accomplishing this.

Keep in mind that different levels of competence are required to execute different documents and instruments. While a minimal level of competence is needed to execute one’s will (we take into account the fact that final plans may not be made until well after the eleventh hour, when a testator’s medical condition may be grave), considerably higher requirements are set for the execution of deeds, powers of attorney, contracts, brokerage house documents, etc.

A major key to determining the competence of a decedent may be found in records of medical care and treatment from times contemporaneous with the execution of the documents which are in question. A recent revision to New York’s Mental Hygiene Law allows distributees of decedents to obtain these records without waiting for the issuance of Letters Testamentary or Letters of Administration. This may be especially useful where an executor is slow to provide authorizations to obtain medical records –and may also allow a potential objectant to a will to have a better idea of the chance of success before engaging in costly litigation. Where an in terrorem clause is involved, this allows the gathering of vital medical information before objections are filed and before the clause becomes operative.

Hospital, nursing home and rehab center records may contain a virtual treasure trove of information. It is usually worth the investment of several hundred dollars to purchase them in those cases where you are absolutely sure that Uncle Larry was not in his right mind when he signed over his ranch to his absolutely adoring 22 year old home health aide who consistently maintains that, to pass the time, Larry used to explain complicated theories of quantum physics to her . These records contain daily –sometimes hourly– records of treatment. They report all of the medications being administered , some of which may have definite impact on one’s ability to make business or estate decisions. Sometimes these medications may also interact with each other causing unexpected mental and emotional effects.

Being hospitalized or residing in a nursing home for an extended period may , in and of itself, lead to a depression or produce a "hospital psychosis" where even the best and brightest of us become somewhat disoriented and may exhibit some signs of dementia. All of this is recorded in the nurses notes which accompany the doctor’s entries. These notes are often an intimidating scrawl which defies deciphering by a non-medical person.

Spend the money. Hire a qualified forensic nurse-practitioner to review and analyze the records. Sometimes the road simply leads to a dead end but at other times the results may be awesome. These notes reveal the decedent’s  comments and behavior when he or she was on powerful medications and left alone to ruminate for long portions of the day. Sometimes they  paint a totally different picture of the Uncle Larry everybody knew, loved and came to for advice. Either way, medical information properly analyzed by a professional will provide a much better vantage point from which to determine whether or not a challenge to competency is warranted.