Assessing competency to make a will

Abstract

The finding by a court that the author of a will (the testator) lacked mental capacity or was subject to undue influence at the time the will was executed can invalidate the will. A psychiatrist may be asked to assess the competency of a testator when he or she is planning to create or modify a will or after the death of a testator when the will is challenged. To provide guidelines for such evaluations, the authors reviewed the relevant psychiatric, forensic, and legal literature and drew on their own professional experience as well. They outline a systematic approach to the contemporaneous and retrospective evaluation of the elements that affect decisions about mental capacity and undue influence and offer suggestions for the organization and presentation of expert testimony. Awareness of the relevant legal principles and a systematic clinical approach to the assessment can maximize the quality of the psychiatric consultation and expert testimony.

Financial Capacity and Financial Exploitation of Older Adults: Research Findings, Policy Recommendations and Clinical Implications

“…Undue influence is a legal construct that is defined differently by the courts dependent upon jurisdiction (Peisah et al, 2009). Although legal definitions vary with regards to undue influence, typically definitions require some combination of the following aspects, (1) that there is a confidential or intimate relationship, (2) factors that increase the susceptibility of the elder are present, (3) that there is a power differential that results in susceptibility to coercion, and that (4) the coercion results in financial or testamentary decisions are suspicious (i.e., not proportionate to services provided; unnatural heir) (Peisah et al, 2009; Spar & Garb, 1992; S. A.…”

Testamentary Capacity Assessment: Legal, Medical, and Neuropsychological Issues

“…However, it is frequent for the health care practitioner, usually the forensic examiner, be it a psychiatrist, a neurologist, or a psychologist, to be asked as an "expert" about a person's ability to make a valid will and to give evidence for or against a challenge to a will. 55 Thus, TC becomes a function crossing both the legal and medical fields requiring a collaborative approach for its assessment, while experts can help the court to decide. 37,56,57 A legal professional could assess the testator in person and determine whether the individual should be evaluated by a health practitioner together with the suitable legal guidance and the clear definition of the health professional's role.…”

“…Despite the recommendations and need for the development of a single standardized and specialized instrument for the assessment of TC, such a widely accepted instrument has not yet been developed. 7,13,25,51,55 Standardized evaluation tools can be valuable and helpful to the expert, providing evidence for his or her assessment, guidelines to the court for a more consistent approach to TC judgment, 22 and a clear starting point for a discussion on competence, 66 although neuropsychological instruments can never override the expert's opinion. 5 Without a specific standard to determine which test should be used, there may be variation and a lack of standardization in the way assessments are conducted.…”

Development of a specialized evaluation instrument for the assessment of testamentary capacity in patients with dementia

“…As it is highlighted, one of the most frequent and successful grounds for challenging a will is to claim that it was the product of undue influence (Frolik 2001). The doctrine of undue influence rests on the idea that the undue influencer subverts the wishes of the testator such that the new will reflects the wishes of the influencer rather than those of the testator (Frolik, 2001;Spar & Garb, 1992). Undue influence should be distinguished from "due influence", which is the usually notable natural favoritism or special devotion to particular heirs (Gutheil, 2007;Voskou et al, 2018).…”

“…Over the years, courts have identified several "indicia" or criteria that raise the suspicion of undue influence (Spar & Garb, 1992;Shulman, et al, 2007;Peisah et al, 2009). These conditions can include:…”