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Videotape Testimony Can Be Powerful Evidence When Mental Competency is Questioned

A California judge dismissed a challenge to the mental competency of 92 year old billionaire Sumner Redstone (Viacom and CBS's controlling shareholder) after reviewing videotaped testimony where Mr. Redstone appeared to be competent and clearly indicated his desires to cut Ms. Herzer (his former girlfriend) out of his life.

A lawsuit challenging Mr. Redstone's mental competency was filed by Manuela Herzer after she was removed as Mr. Redstone's health care agent and after a $70,000,000 gift to her in his will was withdrawn. Instead, Redstone appointed his daughter, Shari Redstone as his health care advocate. Further details about the case can be found at

The case is an example of the value of videotaped evidence when addressing issues of competency. Videotape is often used to demonstrate competency (or the lack thereof) in cases involving estates, trusts and guardianships/conservatorships. Although the videotape in the Redstone case involved a deposition in the context of a pending lawsuit, videotape can be used at any time an important decision is made by an elderly person. Sometimes it's worthwhile to videotape the execution of estate planning documents when future problems are anticipated in an effort to cut off potential challenges. To be most effective though, more than just the basic signing of the documents should be recorded. The videotape only has value if the individual engages in a real conversation about his or her intentions.

Recently, I used videotape to demonstrate competency in anticipation of court proceedings, not yet initiated, in order to allow an individual the dignity of continuing to manage his or her own affairs. I arranged a half hour conversation with my client, in his home that was recorded by a certified videographer. Some weeks later, my client's competency was challenged and I submitted a copy of the video in his defense. The recording clearly showed an elderly gentleman who was knowledgeable about his substantial financial assets and engaged in rational decision making. The judge reviewed the video and dismissed the case, just like in the Redstone lawsuit.

Kenneth F. Silver

Hertz Schram PC

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