Court battles over the mental acuity of Sumner Redstone underscore the difficult medical and legal issues surrounding directives made late in life.

Share story

For estate lawyers and probate judges, knotty conflicts about the mental competence of a benefactor, even charges that someone has exerted “undue influence,” are far from uncommon.

But the unfolding battle over Sumner M. Redstone’s wishes is in a class by itself, if for no other reason that so much is at stake: the control of a media empire worth $40 billion, including the holdings of Viacom and CBS.

In this case, the courts must sort out not a deathbed will but the mental acuity of Redstone, a legendary media mogul who turned 93 Friday. He suffers from declining cognition, is fed through a tube and communicates with great difficulty, often through a nurse or speech therapist who interprets his utterances.

“These are often very difficult cases,” Dr. Paul S. Appelbaum, an expert in geriatric psychiatry at Columbia University, said of disputes over late-life directives. “It can be hard to determine whether a person has the capacity to make these decisions, and questions regarding undue influence are if anything more difficult to assess.”

At issue in Redstone’s case is whether he acted freely, with a clear understanding of the consequences, when he had a lawyer this month inform two directors at Viacom that they were removed from a crucial trust — a body that will manage the corporate holdings when Redstone dies or if he is officially declared to be incapacitated.

The ousted trustees, Philippe P. Dauman, the chairman and chief executive of Viacom, and George Abrams, a Viacom director, charged in a Massachusetts court Monday that Redstone is profoundly impaired and that his formerly estranged daughter, Shari Redstone, had isolated and manipulated him to secure trustee appointments for her own allies.

Lawyers for Redstone shot back with a petition in a California court, asserting that Redstone has not been declared incompetent under the terms of the trust and, as one lawyer put it, “Mr. Redstone has been clear and unequivocal in his desire to remove Philippe Dauman and George Abrams as trustees.”

The determination of competence exists at a ragged intersection of psychiatry, geriatric medicine and the law. While precise legal definitions may vary by state and subject, psychiatrists look, in essence, for evidence that a person understands the relevant facts and appreciates the effect of his or her decisions, said Dr. Kenneth I. Shulman, an expert on dementia and a professor of psychiatry at the University of Toronto.

But capacity cannot be considered, these experts added, apart from the nature of the decisions being made and their potential consequences. In a recent lawsuit that also challenged Redstone’s mental facility, a California judge did not try to determine his competence. In dismissing the case, he made a more narrow ruling that rejected the plea of Redstone’s former companion, Manuela Herzer, whom the mogul had dismissed as his health-care agent.

On the basis of videotaped testimony in which Redstone seemed to fade in and out of understanding but vehemently expressed his dislike of the former companion, the judge concluded Redstone clearly did not want Herzer at his side making health decisions.

But the current dispute over corporate governance has far greater potential consequences for Redstone’s companies and their thousands of shareholders, and a judge could demand a far more thorough evaluation of Redstone’s cognition.

“Now we’re talking about the interests of third parties, and the issue of competence is certain to receive more prolonged attention,” said John C. Coffee, a professor at Columbia University Law School and the director of its Center on Corporate Governance.

Determining undue influence is even trickier and in the end is a legal issue, to be decided on the basis of facts before the court, rather than a clinical one, Shulman said.

Improper pressures can come in two main ways, the experts said. One involves overt threats, which are more obvious but not always witnessed. But more persistent, low-level pressure of a cognitively impaired person — preying on his or her emotions — might also be considered undue.

One common sign of improper influence, experts said, is a sudden and significant change in position on important issues, like the wholesale rewriting of a will, especially if the person has been kept in isolation from friends, family or colleagues. The legal complaint filed by Dauman and Abrams says those conditions exist. Redstone’s lawyers deny that.

Late-life changes in preferences are not necessarily improper, and it is hardly unusual, estates experts said, for people to turn in favor of long-estranged children.

But when such a sharp shift occurs, Shulman said, “at that point it’s important that the person is able to communicate a clear and consistent rationale for the change.”

Whether Redstone has the capacity to explain his recent actions, if it comes to that, is unclear and his lawyers have not offered public evidence about how he made these decisions.

Instead, in the petition filed Monday in Los Angeles, Redstone’s lawyers argued that because the conditions for declaring incompetence, as explained in the trust, had not been met, the validity of his directives should simply be confirmed.

“The California claim is an effort by Redstone’s lawyers to take the issue of competency off the table, by saying it was taken care of under the terms of the trust,” said Michael Waterstone, an expert on disability law and the incoming dean of Loyola Law School, Los Angeles. “But it’s unclear how successful that attempt will be.”