The question of testamentary capacity or competency in making a Will or Trust is both a psychiatric and medical assessment. Flags go up when a bequest is out of character for the testator, in conflict with stated desires, and earlier estate plans.  Undue influence can rear its ugly head.  Psychiatrists and psychologists unfamiliar with legal questions are unprepared to render a forensic opinion in this area.  One example is that there is a different threshold of mental competency to enter into a contract such as a Trust, than to make a Will.  There are indicia of undue influence which may or may not not exist.  I explore issues of “Undue Influence” in the making of a bequest and Competency to make a Trust or enter into a contract in companion articles on this site.  Regarding testamentary capacity, I have performed many types of evaluations around this question:

  • I have performed many assessments of individuals who have executed Wills where their testamentary capacity and vulnerability to undue influence was an issue. In this case, the testator (the person who made the Will) may have since developed dementia or passed away. In order to perform this type of evaluation, it is usually necessary to read extensive medical records and interview people who knew the person at or around the time the Will was drawn. A psychological reconstruction is then performed based upon the available evidence. With sufficient evidence, I am able to reach a medical opinion as to the individual’s capacity to execute the Will.
  • I have assessed individuals who were preparing to execute a Will and whose attorney wanted to ensure that the client was of sound mind and competent to undertake the endeavor. A significant part of my evaluation is assessing the issue of “undue influence” on a person’s decisions if there is any question undue influence is at play.
  • There have been occasions when codicils have been appended to a Will, which were then challenged. It was my task then to assess not the individual’s testamentary capacity but rather the testator’s capacity to enter into a contract, a significant legal distinction. A codicil is the amending of a contract—a Will in this case–which may be a very long and complicated document. It is important to distinguish if testamentary capacity vs. capacity to enter into a contract is the actual issue being evaluated.

In my career I have encountered many fascinating cases. The most common are when dementia-type symptoms set in near to the time a Will was executed which radically changed the terms of a prior Will.

In one case, the testator chose to discontinue a life-saving regimen, the result of which was known to release toxins into the blood stream, change mental capacity and ultimately kill the patient. It was in the testator’s final days that the new Will was drawn up.

In many cases, the relationship between two people, e.g. an adult child caring for an elderly parent, or a professional caregiver and his or her charge, is distorted as the cared-for person appears to become isolated and dependent, then changes his or her Will to exclude former beneficiaries in favor of the caretaker. Appearances can be deceiving. For a complete picture, I have called on both my general medical training, my training in neurology and psychiatry (I am Board-Certified by the American Board of Neurology and Psychiatry) and my forensic skills.

Interestingly, my experiences with cults and other situations of undue influence have been useful in such cases. The capacity to knowingly and independently enter into a contract to distribute your estate requires that you are not bowing to the pressure of another, or your judgment is unclouded by physical or mental disease.

CategoryTrusts & Estates