Testamentary capacity

Abstract: Background Challenges to Wills on the basis of lack of testamentary capacity are likely to increase due to a combination of economic factors, high prevalence of mental disorders in old age and the complexity of many modern families Geriatric psychiatrists and other experts will be asked to provide expert assessment of the testamentary capacity of individuals whose Wills are being challenged retrospectively The traditional criteria described in the Banks vs Goodfellow case have been held as the standard for testamentary capacity However, these criteria may not be comprehensive enough for the coming generation of expert assessors Method The literature and selected international case law relevant to testamentary capacity were reviewed Particular focus is placed on the conceptual and empirical approaches to the assessment of complex capacities that may inform the development of specific legal standards In addition, 25 consecutive medico-legal reports on retrospective testamentary capacity were analyzed according to co-morbid medical and psychiatric disorders as well as psychosocial and behavioural variables Illustrative case vignettes are included Results The typical profile for retrospective challenges to testamentary capacity included a radical change from a previous Will (72%), where undue influence was alleged (56%), in a testator with no biological children (52%), who executed the Will less than a year prior to death (48%) Co-morbid conditions were dementia (40%), alcohol abuse (28%) and other neurological/psychiatric conditions (28%) Conclusions While Banks vs Goodfellow continues to provide a sound basis for assessing testamentary (task-specific) capacity, the complexity and subtlety of the issues reflected in these cases highlight the need to go beyond the traditional criteria and assess situation-specific factors Expert assessors need to determine whether the testator appreciated the consequences of executing or changing a Will, especially when there has been a radical change in the context of a complex or conflictual family environment Empirical studies addressing the cognitive functions relevant to testamentary capacity and the development of legal standards based on a competency construct may also help to inform retrospective capacity assessments Copyright © 2004 John Wiley & Sons, Ltd

Abstract: Background: Challenges to wills on the basis of lack of testamentary capacity and/or undue influence are likely to increase over the next generation. Since contemporaneous assessment of testamentary capacity can be a powerful influence on the outcome of such challenges, there will be an associated increase in requests for expert assessment of testamentary capacity. There is a need to provide such potential experts with the knowledge and guidelines necessary to conduct assessments that will be helpful to the judicial system. Methods: A subcommittee of the International Psychogeriatric Association (IPA) task force on "Testamentary Capacity and Undue Influence" was formed to establish guidelines for contemporaneous assessment of testamentary capacity. Results: The task-specific criteria for testamentary capacity as outlined by Lord Chief Justice Cockburn in the well-known Banks v. Goodfellow case are described. Additional issues are identified for probing and documentation. This is designed to determine whether the testator can formulate a coherent, rational testamentary plan that connects his/her beliefs, values and relationships with the proposed disposition of assets. Rules of engagement by the expert assessor are defined as well as an approach to the clinical examination for testamentary capacity resulting in a clear and relevant report. Conclusion: Guidelines for experts who are asked to provide a contemporaneous opinion on testamentary capacity should help to inform disputes resulting from challenges to wills. A consistent clinical approach will help the courts to make their determinations.