Factors Affecting Testamentary Capacity
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There are several factors that can
impact someone’s capacity to create a will that accurately reflects his
or her true wishes . These include:
Physical factors center around brain
dysfunction and/or the impact of certain medic to pre-empt will
challenges on this basis is to have a letter from the client’s
physician attesting to the patient’s clear cognitive status and
(particularly in cases with large estates or with a history of family
discord) a copy of a psychological or neuropsychological evaluation
examining that cognitive status. Obviously, such a letter should be as
close in time to the date of the will signing as possible.
With respect to mental health issues,
it is important to note that the mere presence of mental illness does
not necessarily mean the client is incapable of creating an accurate
will. Different mental illnesses have different affects on the
ability to think and plan rationally, and there is no one-size-fits-all
answer to the question of whether this particular client’s emotional
problems are impeding testamentary capacity.
One of the most explosive dilemmas any
attorney writing a will faces is a situation in which she or he suspects
that there may be “undue influence” impacting the client’s testamentary
decisions. If a client is brought to a competency evaluation, Regan and
Gordon (1997) suggest that the following behaviors may be clues that
“undue influence” is being brought to bear:
The individual who asks for the examination states that
the evaluation is merely “routine” owing to the testator’s age
Someone other than the testator (or his or her attorney)
makes the appointment for the evaluation
The person transporting the testator to the appointment is
reluctant to permit her or him to be interviewed privately
Details about the will are absent, or the testator appears
vague about specific items in the will.
The testator is hesitant about providing information about
the potential heir and his or her relationship to that person
It goes almost without saying that the
best strategy for avoiding any will challenges is done prior to the
reading of the will! Attorneys who feel that their client’s will may be
challenged may wish to use any or all of these suggestions made by Sprehe and Kerr (1996):
If close family members are being excluded from the will,
inquire about their omission
Have the client have a mental health evaluation as close
to the date of the will execution date as is feasible
Have the witnesses to the will participate in both the
preliminary will conference and the conference just before the will is
Write detailed memoranda of both the preliminary
conference and the execution conference, including memoranda by the
If any circumstances arise which might cause a
challenge to the will, conduct all proceedings as if the challenge were
a certainty. Preserve all documentation and contemplate videotaping
Records should be kept in perpetuity.
Sprehe and Kerr emphasize the
videotaping both wills and advance directives. Buckley (1988) also
urges videotaping, stating that such a recording “provides a visual
nexus between declarant and document so that intentions are crystallized
and mental competency is undeniably demonstrated.”
Utilizing the strategies and
suggestions given above will greatly increase the likelihood that the
attorney will be able to fulfill his or her duties---advocating for the
wishes of the client---to the maximum extent possible.
Drogin, E.J. (2003)
Substituted judgment: Roles for the forensic psychologist. In
Forensic Psychology (2004) Goldstein, A. Ed. John Wiley & Sons.
Regan, M.W. and
Gordon, S.M. (1997) Assessing testamentary capacity in elderly people.
Southern Medical Journal, 90, 13-15.
Sprehe, D.J. &
Kerr, A.L. (1996) Use of legal terms in will contests: Implications for
psychiatrists. Bulletin of the American Academy of Psychiatry and
the Law, 24, 255-265.