Testamentary Capacity - a Psychiatric Perspective
Wills are often challenged on the basis of allegations that the testator lacked capacity or was under the undue influence of another individual. When such claims are made, medical evidence is usually offered to either support or impugn the testator's mental state and/or the role of a potential undue influencer.
However, while doctors and lawyers rely on common cognitive screening tests for capacity, such as a Mini-Mental State Examination, there is no standard medical instrument for testing capacity.
The May issue of the American Journal of Psychiatry includes an article which advocates the need for standard criteria to evaluate capacity in the context of the testator's specific personal circumstances.
The article, published collaboratively between a number of psychiatric specialists and estate lawyers, including Ian Hull, argues that there is a fundamental interrelationship between the mental ability to create a Will and the testator's personal situation. When the testator is on the verge of incapacity, the influence of persons close to him or her may serve to vitiate his or her ability to make an independent decision.
The article suggests that certain questions should be asked of the testator to query both his or her capacity and circumstances, including questions directed at:
- The rationale for any dramatic changes or deviations from prior wills;
- An appreciation of the consequences and impact of a particular distribution;
- The testator's understanding and appreciation of any conflicts or tensions in his or her environment;
- The nature of any family or personal disputes or tensions; and
- The testator's motivation for distributing the estate as instructed.
Such questions should be in addition to standard questions to test a testator's capacity and intentions.
Thanks for reading,
Jason Allan
