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A Complicated Legal Battle Over Sumner Redstone’s Mental Acuity

Sumner Redstone’s daughter, Shari Redstone, third from right, leaving court in Los Angeles this month.Credit...Kevork Djansezian/Reuters

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 than 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 Mr. Redstone, a media mogul who will turn 93 on 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, a psychiatrist at Columbia University and expert in competence assessment, 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 Mr. Redstone’s case is whether he acted freely, with a clear understanding of the consequences, last week when he had a lawyer inform two directors at Viacom that they were removed from a crucial trust — a body that will manage the corporate holdings when Mr. 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 on Monday that Mr. 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 Mr. Redstone shot back with a petition in a California court, asserting that Mr. 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 legal definitions may vary by state and subject, psychiatrists look, in essence, for evidence that a person understands the relevant facts and appreciates the impact of his or her decisions, said Dr. Kenneth I. Shulman, a professor of psychiatry and an expert on dementia at the University of Toronto.

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

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

But the current dispute over corporate governance has far greater potential consequences for Mr. Redstone’s companies and their thousands of shareholders, and a judge could demand a far more thorough evaluation of Mr. 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 in the end is a legal issue, to be decided on the basis of facts before the court, rather than a clinical one, Dr. 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 on 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 Mr. Dauman and Mr. Abrams says those conditions exist; Mr. Redstone’s lawyers deny that he has been kept in isolation.

Late-life changes in preferences are not necessarily improper, and it is hardly unusual, estate experts said, for people to turn in favor of long-estranged children. But when such a sharp shift occurs, Dr. Shulman said, “at that point it’s important that the person is able to communicate a clear and consistent rationale for the change.”

Whether or not Mr. 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, Mr. 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.”

A version of this article appears in print on  , Section B, Page 2 of the New York edition with the headline: A Complicated Legal Battle Over Sumner Redstone’s Mental Acuity. Order Reprints | Today’s Paper | Subscribe

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