Neuropsychological Assessment of Testamentary Capacity and Undue Influence: Table 1.

Abstract

Neuropsychologists are increasingly requested to perform assessments of testamentary capacity. This article provides an overview of the psycho-legal context in which such assessments are performed. Suggestions for an evaluative methodology for performing these evaluations with both living and deceased testators are provided.

A Comprehensive Approach to Assessment of Testamentary Capacity

“…Since then, legal interpretations have evolved to include clinical classifications of high, low, or borderline threshold of TC ( Marson et al, 2004 ; Moye, 2005 ). Complex situations with a large transfer of wealth with multiple possible beneficiaries require a higher threshold of TC due to the greater financial consequences ( Shulman et al, 2005 , 2007 , 2009 , 2017 ; Mart, 2016 ; Hoffman, 2018 ). In contrast, the legal standard for TC is lower for less complex situations in order to preserve a person’s right to distribute their assets upon death ( Peisah et al, 2009 ; Shulman et al, 2009 ; Hoffman, 2018 ).…”

“…Several different components of memory should be evaluated in a TC assessment. At a basic level, a testator should demonstrate comprehension and semantic memory of information pertaining to a will ( Marson and Hebert, 2005 ; Shulman et al, 2007 , 2009 , 2017 ; Mart, 2016 ; Brenkel et al, 2018 ). Although some guidelines have proposed that the testator may be permitted to use legal documents and be prompted when analyzing their assets ( Mart, 2016 ), others assert that only general knowledge of assets and their value is needed as long as the testator has a clear plan for the will ( Shulman et al, 2009 , 2017 ).…”

“…At a basic level, a testator should demonstrate comprehension and semantic memory of information pertaining to a will ( Marson and Hebert, 2005 ; Shulman et al, 2007 , 2009 , 2017 ; Mart, 2016 ; Brenkel et al, 2018 ). Although some guidelines have proposed that the testator may be permitted to use legal documents and be prompted when analyzing their assets ( Mart, 2016 ), others assert that only general knowledge of assets and their value is needed as long as the testator has a clear plan for the will ( Shulman et al, 2009 , 2017 ). Under these recommendations, a person must be able to identify what type of asset he has (e.g., real estate property) and be able to approximately identify or categorize its worth ( Shulman et al, 2017 ).…”

“…Under these recommendations, a person must be able to identify what type of asset he has (e.g., real estate property) and be able to approximately identify or categorize its worth ( Shulman et al, 2017 ). TC assessments should also determine if the testator has intact historical and episodic memory in order to ensure that they know who could inherit their property, money, and assets ( Marson and Hebert, 2005 ; Shulman et al, 2007 , 2009 , 2017 ; Mart, 2016 ; Brenkel et al, 2018 ).…”

“…It has also been recommended that TC assessments also determine whether the testator has adequate executive functioning skills to plan for and comprehend the consequences of their actions. For example, assessors should inquire into the testator’s understanding of family relationships and conflicts that may affect the plan for the will ( Marson et al, 2004 ; Moye, 2005 ; Shulman et al, 2007 , 2017 ; Mart, 2016 ). The testator should also demonstrate understanding of the consequences that may result from leaving out specific possible beneficiaries ( Shulman et al, 2017 ).…”