Forensic neuropsychiatric evaluation of testamentary capacity and undue influence
Case Name: In Re: Estate of Herbert Joel Zieben, Deceased

Testimony Date: April 13, 2015

Retaining attorney:
Leonard J. Meyer, Esq.
Zimmerman, Axelrad, Meyer, Stern & Wise, P.C.
3040 Post Oak Boulevard, Suite 1300
Houston, Texas 77056-6560
Phone: (713) 212-2641

Retained expert:
Harold J. Bursztajn, M.D.
Associate Clinical Professor and Co-founder, Program in Psychiatry and the Law
Department of Psychiatry, Beth Israel Deaconess Medical Center
Harvard Medical School
96 Larchwood Drive
Cambridge, MA 02138
Phone: 617-492-8366

Forensic neuropsychiatric issues arise regularly in some litigation contexts. For example, in 2014-2015 Dr. Bursztajn was retained by counsel for contestants of a will controlling whether an estate worth over $30 million would pass to the deceased’s natural children or to their step-mother and ultimately her daughter from a prior marriage. He was asked to perform a forensic neuropsychiatric autopsy of the deceased, who had suffered from multiple medical conditions including Alzheimer’s dementia and vascular dementia, a less common form of dementia that may still cause severe impairments. Based on his forensic neuropsychiatric evaluation of the available biopsychosocial data, Dr. Bursztajn testified as to the diminished contractual and testamentary capacity of the deceased and his vulnerability to undue influence. Dr. Bursztajn explained how the nature and severity of the deceased’s impairments rendered him incapable of specific tasks. These tasks included comprehending the complex interplay between the contested will and other estate planning documents that at first glance appeared to provide generous gifts to the deceased’s natural children, but when read together provided virtually nothing to his biological family. The opposing party retained the deceased's treating neurologist as an expert in an attempt to dispute Dr. Bursztajn's testimony by focusing on the diagnosis and speculating that the deceased’s impairments would not have worsened over time, rather than on the nature of these impairments and how they affected the deceased’s ability to understand what he was doing. After a three-week trial, the jury found in favor of the contestants, who were also awarded legal and expert fees.