Normally, a person’s medical records are protected from disclosure due to privacy concerns. But what happens when privacy concerns collide with the need for disclosure? In will contests, this often happens when allegations of undue influence or lack of testamentary capacity arise. This is because proving either of these two allegations often involves the extensive examination of medical records.

The main reason for the privacy of medical records is the principle that people should be encouraged to speak frankly with their physicians. Without a guarantee of confidentiality, a patient might conceal a dangerous condition out of fear that it might be disclosed to his boss, his spouse, or to the general public.

Lack of Testamentary Capacity

If the testator of a will is found to have lacked testamentary capacity at the time the will was executed, the will is invalidated. A person lacking testamentary capacity lacks the ability to understand the extent of his assets, the natural beneficiaries of his wealth, or the purpose and effect of his will. Medical evidence could obviously help prove or disprove such a claim.

Undue Influence

Under Texas law, to set aside a will because of undue influence, it must be shown that a person used persuasion or another form of influence to subvert or overpower the testator’s mind to the extent that the will would not have been executed except for this influence. Establishing undue influence can result in the invalidation of a will.

One of the factors used by Texas probate courts to determine whether undue influence was present is whether the testator possessed the mental capacity to resist the influence of the potential beneficiary. A person claiming undue influence would want to use medical records to prove mental deficiency on the part of the testator to show that the testator was more susceptible to the undue influence.
  

How the Discovery Process Works

The discovery process allows each side in a legal action, such as a lawsuit or a criminal prosecution, to obtain information relevant to their case. A defendant may be questioned under oath at a deposition, for example, or one side might present written questions (called interrogatories) to the other. One side can seek a court order to compel the other side to cooperate.

A party is entitled to demand information from the other side if it is relevant and it is calculated to lead to admissible evidence. The other side might refuse to provide it, however, on the grounds that the information is subject to an established privilege. Conversations between an attorney and his client, for example, are subject to the attorney-client privilege.

Evidentiary Privileges

The physician-patient privilege and the mental health information privilege are separate, state-level privileges under the Texas Rules of Evidence. They normally allow a patient to conceal information about his health obtained by a medical professional during the course of treatment. This includes both (i) conversations between the patient and his physician, and (ii) written medical records.

The right to invoke the privilege extends to both the patient and his physician. The patient can invoke it to refuse to answer a question and a physician is obligated to invoke it to protect his patient’s privacy – unless his patient waives the privilege. Even the deceased is protected; the personal representative of a probate estate can invoke the privilege to protect the privacy of the deceased.

Exception to the Medical Evidence Privileges

The exceptions to the physician/patient privilege and the mental health privilege apply when the testator’s mental or physical condition is at issue. A party contesting a will can overcome the privilege on his own initiative simply by asserting a mental or physical health-related claim or defense (as long as it is relevant) that requires information otherwise protected by physician-patient privilege.    

For example, a family member who is asserting a mental health claim against a deceased testator to invalidate the testator’s last will and testament can normally access the testator’s medical records over the objections of the personal representative of the testator’s probate estate. That is, as long as these records are needed to establish his claim. Lack of testamentary capacity and undue influence are claims for which mental health-related medical evidence are frequently considered relevant.  

This exception might not apply if, for example, the party seeking the testator’s medical records were claiming that the testator executed the will under duress. A claim of duress is a claim of a temporary mental state for which medical records are typically irrelevant. On the other hand, medical evidence might be relevant if, say, the party asserted that the testator was particularly vulnerable to duress due to PTSD (post-traumatic stress disorder), which may have been diagnosed and included within the testator’s medical records.

Violation of an Evidentiary Privilege

Suppose a probate court inappropriately allows an exception to an evidentiary privilege, thereby allowing medical evidence to be introduced that never should have been admitted in the first place. If the court’s ultimate decision in the case could have decisively affected the outcome, the judgement will be vulnerable to attack – in other words, it could potentially be overturned.  

Start Preparing Today

You may be planning to contest a will based on undue influence, lack of testamentary capacity, duress, or some other grounds. Alternatively, you may be expecting to defend a will against a challenge. Either way, the probate attorneys at Romano & Sumner have got you covered.

We represent clients throughout Sugar Land and the rest of Fort Bend County and elsewhere. Call us today at (281) 242-0995 or fill out our online contact form to schedule a free consultation.