Your Last Will and Your Free Will
Szasz, Thomas S.
"Your Last Will and Your Free Will" IF YOU ARE NOT rich, are not interested in becoming rich, don't know anyone who is rich, and are not afraid of the capricious power of corrupt psychiatrists, then you may not want to read any...
...Lubricated by lavish fees, brokers in law and lunacy can appear amazingly sincere and righteous in assuring courts and juries that men such as John Doe did not will what they had put in their Wills, but "really" willed what their disinherited relatives would have liked them to will...
...Actually, however it revolves around the matter of the disinherited relatives' power, or their lack of it to overrule the testator's free will, at least after death if not in life...
...Furthermore, even if the testator's estate prevails in court, it will have to bear the costs of defending the testator's free will and upholding the legal validity of his Last Will—a defense into which it can always be forced by disinherited relatives...
...Wealthy persons knowledgeable about the ways of the financial world are usually very careful about the arrangements they make for disposing of their assets after their deaths: they try to reduce, as far as possible, the expenses incurred in transmitting their material possessions to their heirs...
...Because of the way the laws of inheritance are written, and because of the way courts interpret such contests, it is actually not easy to break a Will on psychiatric grounds...
...hence the neec for lawyers, juries, and judges...
...How could a court entertain the possibility that an estimate, a mere guess, made by a psychiatrist about a dead person might be more accurate or valid than an "examination" made by a psychiatrist of the same person while he or she was alive...
...Then follow the contents of the Will, the testator's signature, the signature and seal of a Notary Public, and the signatures of witnesses...
...Unless circumstances prevent it, the Will is signed by the testator and witnesses in the presence of the attorney who has prepared the document...
...In the meanwhile, if you know how the game is played, you can easily protect yourself from the psychiatrist—often, as in the inheritance game- beating him to the punch...
...IF YOU ARE NOT rich, are not interested in becoming rich, don't know anyone who is rich, and are not afraid of the capricious power of corrupt psychiatrists, then you may not want to read any further...
...such neglect may cost the testator dearly in the post-mortem defense of the validity of his Last Will, and may result in his bequests ending up in the very hands which, by his free will, he has tried to keep them out of...
...Clearly, there is one thing missing from Last Wills which would lessen the danger of their being contested on psychiatric grounds: namely, an "Attestation Clause" declaring that James Smith, M.D., a duly licensed physician specializing in psychiatry, having been retained by the testator and his attorney, has examined the testator immediately preceding the act of the testator reading his Last Will or having it read to him, and of his signing it, and that he finds the testator mentally competent to make a Will...
...and to insure, as far as 'possible, that these possessions will in fact go to the beneficiaries they have designated in their Last Will...
...For what follows is about your free will, and your Last Will, and about how, if you don't watch out, psychiatrists may deprive you of both...
...What happens next in such a case is that either there is an out-of-court settlement between the contesting parties, the disinherited relatives getting paid off, or the suit goes to court and is decided by a jury...
...Since leg...
...it seems logical that at least some Wills should contain formal psychiatric proof of the testator's capacity to execute a valid testament...
...The matter I refer to is the contesting of a Will by disinherited natural heirs on psychiatric grounds—that is, on the grounds that when the testator executed his Last Will, he was mentally incompetent to execute a valid Will...
...Faced with such evidence, it seems difficult to see how the courts could allow psychiatric Will-contests to develop...
...the psychiatrist listens to the family's stories about the deceased and concludes, as his "professional opinion," that poor John Doe "obviously" did not know who his "rightful heirs" were and was mentally incompetent to execute the Last Will he signed...
...The psychiatrization of the inheritance game is a dirty business, as is the psychiatrization of any and every aspect of law and life...
...The preamble to Last Wills usually begins with a phrase like the following: "I, John Doe, of the City of . . , County of and the State of . . . , being of sound mind and memory, . . . hereby make, etc...
...What would happen, what might happen, if Wills contained such proof...
...Ostensibly, a contest of Wills on psychiatric grounds revolves around the mattes of the testator's mental competence tc make a Will, or his lack of it...
...hence the need for psychiatrists...
...Cleaning up Institutional Psychiatry—the pseudo-medical criminal organization which both capitalist and communist societies now accept as a morally and legally legitimate "profession"—will take a long time...
...Doe has never been married and has no children, natural or adopted...
...All I want to do here is to call attention to one strategy which wealthy testators and their advisors have often overlooked...
...The testator, John Doe, dies in his ripe old age and leaves millions of dollars to charities...
...and since Las Wills typically begin with the testator's self-proclaimed assertion of the soundness of his mind and memory...
...islators, lawyers, courts, and juries deal, and indeed must deal, with the over rather than the covert, the formal rather than the factual aspects of controversies arising out of Will contests based on the testator's mental state...
...John Doe's lawyer or persons representing the charities inheriting his money or someone must have exercised "undue and improper influence" on him to write such a Will...
...I will not discuss or even list the numerous financial, legal, and informal-familial strategies which our legal and economic order provides for those proficient in playing the inheritance game...
...Is there a way in which this undignified, unprofessional, and uneconomic (except for lawyers and psychiatrists) eventuality, which can be easily foreseen in certaincases, could be avoided or prevented...
...A hypothetical case—schematic but typical of the sorts of problems encountered with respect to the psychiatric invalidation of Wills—will help us to deal with the problem concretely...
...But such a claim would unmask—so decisively and dramatically as to render its concealment on future occasions virtually impossible—the boundless hypocrisy of courtroom psychiatry, namely, that the psychiatrist who examines the dead testator on behalf of the disinherited relatives is not exactly impartial either...
...Of course, it could takethe position—and quite rightly—that the psychiatrist who examined the testator for his Last Will was not impartial, that he was in fact a party to the "improper influence" on the testator claimed by the disinherited relatives...
...the attorney retains a psychiatrist...
...The burden of proof rests on the parties trying to set aside the Will...
...Nevertheless, there is always some risk—great or small depending on circumstances—that the court will set aside the Will and award bequests to persons whom the testator wanted to disinherit...
...There is indeed, and it seems incredible that it has never, to my knowledge, been articulated...
...In short, it would become clear that in such cases, what are ostensibly the expert opinions of medical specialists are actually the semantic services of psychiatric prostitutes...
...But he has several brothers and sisters, nephewsand nieces, who want his money and feel "entitled" to it...
...The "family" retains an attorney...
Vol. 8 • November 1974 • No. 2
