Capacity to deed a house with "tigers in the basement" and progressive Alzheimer's

"R" and "M" began dating in 1968. Although they never married, R and M lived together in a home owned by R for the last 14 years of their relationship. In 1996, R executed a deed to his house, leaving it to M upon his death. In 1999, R began to suffer from Alzheimer's disease.

In May 2002, R's daughter took R to a lawyer's office where he changed the deed to his house to leave it to his daughters rather than to M.No forensic psychiatric evaluation was conducted to assess his capacity to deed (1). M sued, claiming that R was not competent in 2002 and asking the court to void the deed to his daughters. The daughters claimed that R made a conscious decision that he wanted the family home to stay in the family, and therefore he executed a deed leaving the home to his two daughters. At a pretrial motion, the court ruled that while a deed is usually a contract, under these circumstances it would be considered a gift. This ruling represented a blow to M's case because much less mental ability is required to make a valid gift than to make a contract.

Pretrial discovery revealed that by 2002, R was unable to prepare food, use the telephone, or drive. He also did not know the day or the year; he could not remember that his parents were dead or that he was retired; he was incontinent; he wandered out of the house in the middle of the night on more than one occasion, and he had very poor short term memory. Further, he could not wash himself, administer his own medication, or change his own diaper. He even had hallucinations about tigers in his basement.

M retained Harold J. Bursztajn, M.D, to conduct a forensic psychiatric evaluation. Dr. Bursztajn reviewed medical records which documented R's progressive cognitive loss during the years between 1999 and 2002. Prior to trial, M provided Dr. Bursztajn's report to the Defendants. The report stated that as R's dementia increased, he lost his ability to think abstractly. Moreover, the fact the he was hallucinating about "tigers in his basement" supported the opinion that his degree of impairment at the time of the deed signing was such as to preclude his being able to comprehend the nature of his property, i.e. the house, sufficiently to deed it.

While some patients with Alzheimer's dementia can be relatively stable and unimpaired for years, there exists a subgroup of patients with Alzheimer's disease who gradually become more cognitively impaired as time goes on (2,3). Initially, only short term memory will be affected, but in later stages--as with R--the brain is affected globally, with significant impairment of almost all aspects of thinking. It was clear that in the case of R, Alzheimer's disease had progressed to the point of leaving him incapable of caring for himself or making his own decisions.

Thus, Dr. Bursztajn concluded that in his forensic psychiatric opinion, to a reasonable degree of medical certainty, R was unable to comprehend a transaction involving the transfer of an interest in real estate at the time that he executed the deed to his daughters. Moreover, he would have been unable to comprehend the extent and value of his property (his house with "tigers in the basement"), which persons were the objects of his bounty, and the manner in which he was distributing his property among them.

R died before trial. At trial, R's daughter insisted that her father exercised his own free will when he changed the deed to his house. However, under cross-examination, further evidence of her father's lack of competence emerged. The daughter conceded that her father believed that things happening on television were actually happening in his house. She further conceded that although her father was "having a good day" on the day he executed the deed, he was still unable to wash or dress himself, administer his own medication, or put himself to bed. Faced with the evidence elicited at trial and the prospect of Dr. Bursztajn's expert testimony regarding R's incompetence to deed the house, the Defendants agreed to make a financial settlement with M.

  1. Bursztajn HJ. Competency to make a will. Am J Psychiatry. 1992; 149:1415.
  2. Tabert MH, Manly JJ, Liu X, Pelton GH, Rosenblum S, Jacobs M, Zamora D, Goodkind M, Bell K, Stern Y, Devanand DP. Neuropsychological prediction of conversion to Alzheimer disease in patients with mild cognitive impairment.
    Arch Gen Psychiatry. 2006 Aug;63(8):916-24.
  3. Yaffe K, Petersen RC, Lindquist K, Kramer J, Miller B. Subtype of Mild Cognitive Impairment and Progression to Dementia and Death. Dement Geriatr Cogn Disord. 2006 Aug 28;22(4):312-319.