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.

Introduction

Right of an individual to create a legal document that provides directions for the distribution of his or her property after death has long been recognized in Western civilization. Such a document is referred to as a will. However, the legal requirements for a will to be considered valid have changed over time and still vary to some extent from jurisdiction to jurisdiction. However, one of the central requirements necessary for a will to be considered valid is that the individual making the will had testamentary capacity at the time the will was made. The most influential description of all the abilities entailed in testamentary capacity is contained in Banks v. Goodfellow (1870):

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not been made. (per Cockburn C. J. in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at p. 565).

The Banks v. Goodfellow criteria have been very influential in American probate law and most states have modeled their laws regarding testamentary capacity on the factors outlined previously. For example, the Uniform Probate Code, which has been adopted in its entirety by 16 States (Uniform Probate Code, 1969, Last amended in 2010, pg. 762) contains the following:

“This approach is consistent with the Restatement (Third) of Property (Wills and Other Donative Transfers) § 8.1(b), which applies the standard of testamentary capacity, and not the standard of capacity for inter vivos gifts, to revocable will substitutes: “If the donative transfer is in the form of a will, a revocable will substitute, or a revocable gift, the testator or donor must be capable of knowing and understanding in a general way the nature and extent of his or her property, the natural objects of his or her bounty, and the disposition that he or she is making of that property, and must also be capable of relating these elements to one another and forming an orderly desire regarding the disposition of the property.”

Mart and Alban (2011) restated the Goodfellow criteria, which have been commonly adopted throughout the United States as follows:

  1. Does the testator understand the nature of the act of making a will? Put simply, this means that the individual making the will understands that a document that will direct the distribution of his or her property after death is being created. This does not mean that they must understand case law regarding inheritance on the same level as a lawyer, but they must have a general idea of what they are doing.

  2. Does the testator understand his or her property? Again, this does not imply that the testator must be able to provide a detailed accounting of each and every element of his or her property. Rather, a more or less accurate estimate of finances and property will suffice and it is perfectly appropriate for documents to be consulted or for the attorney assisting in the creation of the will to prompt the testator regarding these matters.

  3. Does the testator know the natural objects of his or her bounty? The natural objects of one's bounty refer to the people, usually family members, to whom one would generally be expected to benefit in a will, all things being equal, such as brothers and sisters, children and grandchildren. There is no requirement that the testator leaves their belongings to these individuals and he or she can refrain from doing so for any reason unless the decision is informed by what has been termed an “insane delusion.” This term will be defined later in this article.

  4. Does the testator understand how the will disposes of his or her property? This element requires that there be a correspondence between the testator's general intentions for the distribution of his or her assets after death and the way the distribution will occur given the way the will is written. For example, a testator could be asked what his intentions are regarding the distribution of his property and he might state that he wishes equal shares of all of his estate to be distributed to his three sons. If a review of the actual will shows that one of the sons has been disinherited, the testator could not be considered to understand how the will disposes that estate.

In addition to the criteria listed previously, a will can be invalidated if it can be demonstrated that the testator was laboring under a delusion or what has been sometimes referred to in the law as an insane delusion at the time of the creation of the will. Legally, a delusion has been defined as “a false belief which is produced by a mental disorder and which people of the same age, class, and education would find incredible” (Gifis, 2010, p. 147). However, the fact that an individual suffers from a mental condition that includes delusions does not, in itself, necessarily invalidate a will. In most jurisdictions, the delusions of the testator must have a direct impact on the content of the will. For example, in Boardman v. Woodman (47 N.H. 120, 148, 1866) the New Hampshire Supreme Court stated that even if the testator were under a delusion “but the will and its provisions were not in any way the offspring a result of the delusion, they were not connected with or influenced by it, then she was of sound mind to make the will” (as cited in DeGrandpre, 2003). For example, if Mr. Smith believes that the personnel working in the assisted living facility in which he resides has been replaced by cyborgs, but wants to make an equal distribution to his three daughters because he has always loved them, his will would likely be considered valid. On the other hand, if Mr. Smith, who had prior wills directing an equal distribution to his offspring has similar delusions but also disinherits one of his daughters because of an unshakable belief that she has been stealing his thoughts, this would likely constitute an insane delusion.

Undue influence can also invalidate a will. The concept of undue influence arises in contexts other than the making of wills such as contracts and prenuptial agreements. In the context of wills, it refers to a pattern of behaviors by one or more persons on the testator designed to undermine the testator's free will and agency. When this occurs, the will, which is produced, is a product of wishes of the individual(s) applying the undue influence and not of the testator (American Jurisprudence § 73, 2004). It should be understood that a person with testamentary capacity can be the victim of undue influence, although as a practical matter the two concepts are often raised together. On the other hand, the converse is not true; if an individual is determined to lack testamentary capacity at the time of making his or her will, it does not matter how much influence was exerted. One particular difficulty in determining the presence of undue influence is that there are no universally accepted criteria for this concept. However, courts generally rely on accepted lists of indicia of undue influence. These include:

  1. A confidential relationship between the testator and another individual including fiduciary relationships.

  2. Relative isolation of the testator that allows another to control access to information and distortion of the true state of affairs.

  3. Vulnerability of the testator caused by cognitive limitations, mental illness or physical impairment that creates dependency on another.

  4. The individual accused of undue influence played an active role in procuring the will.

  5. Provisions in the will that are inconsistent with prior or subsequent expressions of the testator's wishes.

  6. The individual accused of undue influence profited unduly from changes in the will (Mart & Alban, 2011; Peisah et al., 2009; Spar & Garb, 1992).

Most of the earlier indicia of undue influence are matters of fact and do not require a neuropsychologist, as the court is in the best position to determine whether these indicia are present or absent, or if present, whether they rise to the level of unduly influencing the testator. The only factor that would require the expertise of a neuropsychologist would be whether the testator was vulnerable to undue influence due to the presence of cognitive impairment or other mental condition.

Methodological Considerations

Neuropsychologists and other mental health professionals may become involved in the assessment of testamentary capacity and undue influence when a will is contested by third parties. In these circumstances, family members or other individuals may challenge the will in probate court by claiming that the testator either lacked testamentary capacity at the time the will was executed or was unduly influenced. Assessments of this type may also be required when the issue of guardianship is raised, because the ability to make a valid will is one of the capacities may be subsumed in guardianship statutes, along with the assessment of the individual's capacity to manage his or her financial affairs and make healthcare decisions.

Similar to the assessment of many civil and criminal capacities, the conceptual framework employed for the evaluation of testamentary capacity frequently utilizes the five-component model drawn from Grisso (2003). These components include:

  1. Functional,

  2. Causal,

  3. Interactive (person–context interaction),

  4. Judgmental,

  5. Dispositional.

The application of this model to the assessment of testamentary capacity is straightforward. To assess the functional component, the testator is interviewed and records are reviewed to determine whether he or she appears to be able to meet the requirements laid out in Goodfellow or whatever the legal requirements are in the relevant jurisdiction. If they are able to do so, the evaluation stops at that point. However, if there are indications that the testator has difficulty meeting these criteria, further assessment is undertaken to determine what may be causing these deficits. The interactive component of the model requires the evaluator to consider the interplay between the testator's abilities in the abstract and the context in which they are being asked to perform the tasks involved in making a valid will. The judgmental element is the evaluator's determination regarding the ultimate issue, and the dispositional component includes steps the examiner might take to enhance capacity and the final court decision.

Assessments of testamentary capacity can be performed with a living testator but may also be performed retrospectively when the testator is deceased. Retrospective assessments of testamentary capacity often occur because family members are unaware of changes to a will until after the testator is deceased. The assessment of testamentary capacity with both living and deceased testators is discussed next.

Living Testator

In performing an assessment of testamentary capacity with a living testator, it is important to make special preparations and to acquire certain information prior to meeting with him or her. Some of these issues are basic and practical. For example, in the case of an elderly individual, are they able to come to your office or do they have to be seen in their home or at an assisted living facility? If the individual is living in an assisted living facility or nursing home, what steps need to be taken with the institution to gain access to the testator? Is a private room with a table suitable for testing available? Is the testator able to sit up or are they confined to bed? It is important to know if the examinee has visual, hearing or motor impairments, as this will affect the types of techniques and tests the evaluator will be able to administer. Because the evaluator will be asking questions about the testator's family, finances and personal history, it is important to obtain this background information before meeting with the testator. If this information is not obtained, it is not possible to know whether responses to questions about these issues are accurate or not and the evaluator is not able to perform an accurate assessment of the individual's functional abilities or know what tests to administer after the interview.

A number of authors have suggested the use of semi-structured interviews to determine whether an individual meets the Banks v. Goodfellow criteria (Mart & Alban, 2011; Shulman, Peisah, Jacoby, Heinik, and Finkel, 2009). Issues to be assessed include the following:

  1. The testator's rationale for any dramatic changes or deviations from previously expressed wishes regarding distribution of assets.

  2. Appreciation of the consequences and impact of the distribution of assets in the will, particularly if it excludes natural beneficiaries such as children or other close family members.

  3. Exploration of possible delusional thinking or overvalued ideas that may have an impact on the distribution of assets to family members.

  4. Evidence of neuropsychological deficits or psychiatric illness that may affect the testator's cognition, judgment or impulse control.

  5. Investigation of the emotional/psychological milieu in the testator's environment with particular focus on conflicts between family members, as well as the testator's understanding of these problems.

  6. Evidence of a problematic or dependent relationship with caregivers.

  7. Evidence of inconsistency in the testator's expressed wishes or an inability to clearly communicate a consistent plan with respect to distribution of assets.

  8. Any indications of undue influence.

Exploring these issues provides the evaluator with information regarding the testator's functional abilities in relation to testamentary capacity. Should the testator's responses to questions regarding these issues raise concerns regarding capacity, testing should be administered to provide the court with information regarding the underlying causes of functional deficits.

A number of neurological conditions can cause such deficits. One of the most common is Alzheimer's disease, although Lewy body dementia, vascular dementia or frontotemporal dementia may also occur. The results of neuropsychological testing may demonstrate cognitive deficits consistent with dementia and can be corroborated by neurological consults that include neuroimaging studies of brain-based changes. Delirium can also be an underlying cause of observed deficits in testamentary capacity and is a transient state of altered consciousness. According to the Diagnostic and Statistical Manual of Mental Disorders 5th edition (DSM-5), the diagnostic criteria for delirium are as follows:

  • A disturbance in attention (i.e., reduced ability to direct, focus, sustain and shift attention) and awareness (reduced orientation to the environment).

  • The disturbance develops over a short period of time (usually hours to a few days), represents a change from baseline attention and awareness, and tends to fluctuate in severity during the course of a day.

  • An additional disturbance in cognition (e.g., memory deficit, disorientation, language, visuospatial ability or perception).

  • The disturbances in Criteria A and C are not better explained by other pre-existing, established or evolving neurocognitive disorder and do not occur in the context of a severely reduced level of arousal, such as coma.

  • There is evidence from the history, physical examination or laboratory findings that the disturbance is a direct physiological consequence of another medical condition, substance intoxication or withdrawal (i.e., due to a drug of abuse or to a medication), or exposure to a toxin, or is due to multiple etiologies.

Delirium is common in older individuals and can be caused by a number of mechanisms or events including illness, stroke, sleep deprivation or emotional distress (Fong, Tulebaev, and Inouye, 2009). Unfortunately, delirium is often under-assessed and missed by medical personnel. Peisah and colleagues (2014, pp. 5–6) note that entries in hospital records made around the time a will was executed often report that the testator was “alert and oriented” and that this is often relied on to demonstrate that the individual was unimpaired. However, they describe that these entries are often made based on general clinical impressions of the individual, whereas they were in the hospital and do not rely on specific tests, screening instruments or interviews of sufficient depth to reveal potential deficits. Additionally, Peisah and colleagues (2014) point out that although disorientation is observed in two-thirds of patients in palliative care settings, inattention is often not assessed. Finally, the types of brief mental status instruments commonly utilized in hospital settings rely heavily on orientation in determining cognitive status and tend to neglect attentional deficits.

Differentiating delirium, which has a variable and fluctuating course, from dementia, which is characterized by a downward trajectory, is important because of the legal concept of the “lucid interval.” For hundreds of years, the idea that an individual who suffers from mental illness or a neurological condition may have periods in which his or her ability to reason and make thoughtful choices is preserved has been accepted by the courts. For example, in Wharton and Stille'sMedical Jurisprudence: Mental Unsoundness-Legal Questions by Frank H. Bowlby (1905/2013), the author states that the term was used in English law as early as 1265. Bowlby states that the term was used in the context of making distinctions between insane persons, who might recover their faculties for a period of time as opposed to “idiots” who would be permanently incapacitated. He further describes that the use of the terms “lunacy” and “lucid intervals” were related to the superstition that the moon caused mental disease and that changes in the phases of the moon correspond to changes in the mental state of lunatics. The idea of the lucid interval continues to be applied in American jurisprudence today in testamentary capacity cases and other legal context (In re Estate of Katherine Washburn, 1997). However, it is questionable whether lucid intervals actually exist in individuals suffering from dementia who are generally found to lack capacity. Shulman and colleagues (2015) note that recent research indicates that although these individuals may have some degree of fluctuation in their cognitive abilities, these generally occur in attention and alertness rather than in episodic memory and executive function that are essential for testamentary capacity. As a consequence, the idea that a particular testator who generally lacks capacity may have executed estate planning documents during such an interval should be carefully scrutinized.

Disorders of language, whether developmental or acquired, can affect testamentary capacity. However, the fact that a testator has a language disorder such as aphasia should not be assumed to mean that he or she does not have sufficient ability to meet the Banks v Goodfellow criteria. Aphasia, like other disorders, can vary in severity. In many cases, patient questioning and the use of assistive technology and other aids may make it possible for the testator to provide sufficient information regarding his or her wishes and understanding. It is also the case that although some forms of aphasia (e.g., Wernicke's, global) impair language comprehension and production, other types such as Broca's, anomic and conduction aphasias affect language expression in various ways but not comprehension. In such cases, the use of multiple-choice questions and prompts can be helpful in assessing capacity-related abilities (Mart & Connelly, 2010).

In addition to brain-based causes for lack of testamentary capacity, psychiatric conditions can also cause similar problems. One common cause of such incapacity is psychosis with accompanying delusions; this has previously been mentioned in connection with the legal concept of “insane delusion.” In the same way, Bipolar Disorder, particularly with psychotic features, may affect the testator's judgment such that provisions of the will may not reflect reality. The same is true of other conditions such as Major Depressive Disorder when the testator commits suicide and changes are made regarding the disposition of that individual's property in a suicide note. In many jurisdictions, wills such as these that are entirely written, dated and signed by the testator may be considered valid even if they are not witnessed by another. These types of wills are sometimes referred to as holographic, a term which comes from the Greek “holographos”, which means “written in full by the same hand.” Such wills are subject to the Banks v. Goodfellow criteria but can be problematic for a number of reasons. A number of authors have noted that although courts have generally found that the act of suicide is not, in and of itself, proof that the testator had an unsound mind, suicide can be the product of psychiatric condition such as depression, substance abuse or psychosis, which are conditions that can have a negative effect on testamentary capacity (Shulman, Hull, and Cohen, 2003; Sinyor, Schaffer, Hull, Peisah, and Shulman, 2015). These authors suggest that a careful retrospective analysis of the testator's state of mind prior to and at the time of the suicide be completed.

Assessment of Living Testators

The psychological assessment of a living testator begins with a review of pertinent records and a structured or semi-structured interview designed to provide information regarding the extent to which the individual has or does not have the capacities outlined in the Banks v. Goodfellow criteria (or other relevant criteria). If the testator recalls the members of his or her family, has a reasonably accurate grasp of the estate, has a rational plan for the distribution of his or her property and that plan is not the product of delusional thinking, it may not be necessary to perform an extensive battery of tests. However, even when this is the case, it is generally a good idea to perform some type of screening for cognitive and psychiatric problems if for no other reason than to assure the court that the assessment has been thorough. However, in cases where there are indications of functional deficits, a more comprehensive assessment should be performed.

A number of authors have pointed out that unlike other areas of civil capacity (e.g., capacity to consent to medical treatment or financial capacity), there are no psychological tests that directly measure testamentary capacity. The main reason for this is that of all the civil capacities, testamentary capacity is considered one of the most basic. Courts have traditionally “set the bar” quite low in making such determinations. Unlike some of the more complex civil capacities, in a functional assessment of the testator's abilities related to this capacity, most of the relevant information can be elicited through record review and careful interviewing. An analogy would be a situation in which a neuropsychologist was asked to determine whether an individual was able to parallel park a car. A neuropsychologist doing such an evaluation could administer a battery of tests, including tests of attention and visuospatial abilities, but simply asking the individual to park their car would provide the information necessary in making such a determination and would have superior ecological validity.

The case is different when the testator exhibits deficits in testamentary capacity during the functional phase of the assessment. Once this occurs, more thorough testing is required to satisfy the causal component of the assessment model and to provide the court with information on which to make a decision regarding testamentary capacity. In cases in which the underlying cause of observed deficits is thought to be problems in cognition it is important to consider the underlying abilities that are required to meet the Banks v. Goodfellow criteria. Peisah and Shulman (2012, p. 102) developed a list that matches these legal criteria with their underlying cognitive functions. For example, understanding the nature of the testamentary act and its repercussions requires crystallized semantic knowledge. For the testator to understand the extent of his or her estate requires reasonably intact semantic and autobiographical memory and the ability to recall recent changes in previous estate plans. Determining who will benefit from the distribution of the estate also requires long-term autobiographical and episodic memory, executive function to allow the testator to plan and make judgments about which potential claims should be given most weight, and working memory to hold this information in mind, when making these decisions. Additionally, the testator must have a reasonable degree of receptive and expressive language if he or she is to communicate decisions.

There are many ways to approach the assessment of these underlying processes with regard to the tests administered. There are also practical issues that must be considered. Evaluations of testamentary capacity most often arise with elderly testators. In many cases, these individuals have physical limitations that will effect what instruments are utilized. For example, problems with visual acuity can make it impractical to administer tasks such as Trails A and B, the Rey Complex Figure, tests of confrontational naming and any test requiring reading or writing. Similar considerations with regard to test choice would apply to individuals with problems with auditory acuity and motor dysfunction, and accommodations would need to be made for testators with expressive and receptive language problems. As some elderly individuals are either unable or are uncomfortable using computer-based tests, paper-based alternative assessment measures should be employed.

The length of testing is also a consideration as many elderly individuals tire rapidly and cannot complete a lengthy battery. Breaking up testing for shorter periods over several days is one solution to this problem, but this may become impractical if the individual must travel a long distance for the assessment. However, it is generally not necessary to conduct an extensive neuropsychological test battery for testamentary capacity. This is true for a number of reasons. As mentioned previously, these types of assessments have, as the primary focus, the individual's functional abilities; neuropsychological testing is designed to provide the court information regarding the cause of observed deficits. Additionally, the types of deficits that raise questions about an individual's testamentary capacity are not subtle (e.g., not recalling the members of one's family or not having a general idea of one's estate) and do not require an extensive neuropsychological test battery that would be employed in other situations such as developing a treatment plan for an individual who had experienced a severe traumatic brain injury.

In the same way, it is generally not necessary to administer an extensive neuropsychological test battery for purposes of precise differential diagnosis. In evaluations of testamentary capacity, it is sufficient to explain that the testator has memory deficits that make it impossible for him or her to recall the names and identities of family members or understand the purpose of making a will rather than providing a detailed explanation of the underlying neurological mechanisms of the problem. In addition, providing a general explanation of the testator's cognitive strengths and weaknesses may actually be superior to providing a specific diagnosis. Greenberg, Shuman, and Meyer (2004) note that courts have a tendency to conflate diagnosis with functional capacity, for example, assuming that an individual with early dementia necessarily lacks testamentary capacity. These authors assert that such a diagnosis, by itself, tells the court nothing about an individual's testamentary capacity and should be avoided when possible.

Given these circumstances, a balanced approach to testing is required. Brief screening instruments that are commonly utilized such as the Mini Mental State Examination or the Montreal Cognitive Assessment do not alone provide sufficient information about the areas of cognitive dysfunction that may cause testamentary incapacity. However, both freestanding neuropsychological tests and screening batteries can be utilized to provide necessary information without being overly burdensome to the examinee. Examples of individual tests along with the cognitive functions they assess are provided in Table 1.

Table 1.

Cognitive domains relevant for testamentary capacity and related tests

Intelligence 
  • Wechsler Abbreviated Scale of Intelligence-II

  • Reynolds Intellectual Assessment Scales

  • Kaufman Brief Intelligence Test

 
Attention 
  • Digit Span tasks

  • Cancellation tasks

  • Test of Everyday Attention

  • Symbol Digit Modalities Test

 
Receptive and expressive language 
  • Boston Diagnostic Aphasia Examination

  • Controlled Oral Word Association Test

  • Multilingual Aphasia Examination

 
Memory 
  • Wechsler Memory Scale-IV

  • Rey Auditory Verbal Learning Test

  • California Verbal Learning Test-II

 
Executive function 
  • Delis-Kaplan Executive Function System (selected subtests)

  • Stroop Test

  • Behavioral Assessment of the Dysexecutive Syndrome

 
Intelligence 
  • Wechsler Abbreviated Scale of Intelligence-II

  • Reynolds Intellectual Assessment Scales

  • Kaufman Brief Intelligence Test

 
Attention 
  • Digit Span tasks

  • Cancellation tasks

  • Test of Everyday Attention

  • Symbol Digit Modalities Test

 
Receptive and expressive language 
  • Boston Diagnostic Aphasia Examination

  • Controlled Oral Word Association Test

  • Multilingual Aphasia Examination

 
Memory 
  • Wechsler Memory Scale-IV

  • Rey Auditory Verbal Learning Test

  • California Verbal Learning Test-II

 
Executive function 
  • Delis-Kaplan Executive Function System (selected subtests)

  • Stroop Test

  • Behavioral Assessment of the Dysexecutive Syndrome

 

Another possibility is to utilize one of the commercially available neuropsychological screening batteries that combine abbreviated tasks that assess several cognitive domains. These include the Cognistat, Dementia Rating Scale-2, Repeatable Battery for the Assessment of Neuropsychological Status and the Neuropsychological Assessment Battery Screening Module. In the full Neuropsychological Assessment Battery, each of the assessed domains includes a subtest designed to reflect the demands of actual daily tasks an examinee would likely encounter. These include paying bills, reading maps, recalling addresses, medications and appointments, and recalling details in the physical environment. One author suggested that these “real-world” subtests be combined into a battery that might have increased ecological validity over more traditional neuropsychological tests (Spores, 2013). These screening batteries cover various cognitive domains at different levels of depth and comprehensiveness and clinical judgment should be utilized to determine whether supplementary freestanding tests should be employed to provide more in-depth information.

Because emotional/psychiatric issues may also play a role in observed functional deficits, the testator's emotional status should also be assessed. Although in certain circumstances it may be prudent to administer a comprehensive objective personality instrument such as the Minnesota Multiphasic Personality Inventory-2-Restructured Form or the Personality Assessment Inventory, this is often unnecessary and runs the risk of overwhelming the examinee. In the majority of cases, self-report screening instruments can be utilized in conjunction with the evaluator's mental status examination and clinical interview to assess the individual's emotional functioning. Examples of these types of instruments include the Symptom Checklist-90, Brief Symptom Inventory, Clinical Assessment Scales for the Elderly and the Geriatric Depression Scale.

There are a wide variety of collateral instruments such as the Neuropsychiatric Inventory (Cummings, 1997) and The Informant Questionnaire and Cognitive Decline in the Elderly (Jorm, 2004) that can be utilized to assess a testator's cognitive and emotional status. These may sometimes be useful but their use can also be problematic in some situations. Evaluations of testamentary capacity and undue influence frequently arise in situations in which the individuals who would in theory be the best observers of the testator's abilities and behavior are involved in a legal struggle over the testator's capacity (or lack thereof) at the time of the execution of the will. As such, they may have a financial stake in the outcome of the assessment and the court's ultimate decision regarding testamentary capacity, and will therefore have a motive to over- or under-estimate the testator's functioning. In such circumstances, the evaluator must use a careful judgment in choosing individuals who are likely to provide the most objective ratings.

As previously noted, in the methodology suggested by Grisso, a consideration of the contextual demands in which an individual's functional capacity will be exercised must also be addressed. With regard to the person-in-situation component of the assessment, in evaluations of testamentary capacity this involves considering the complexity of the changes in estate planning that are being contemplated. For example, it is relatively simple for an individual who has had a number of wills that have always directed that his or her estate be divided equally among three children to make minor changes in their distribution based on changing circumstances. For example, if the testator sold his or her house and needs to change the will to reflect this, this would not be a particularly demanding task even if he or she was suffering from Mild Cognitive Impairment or early dementia. On the other hand, the same individual may not be capable of meeting the legal criteria for testamentary capacity if there is a large and complicated estate with multiple properties and a variety of complex financial holdings. There is no bright line for making this determination and assessments that contain careful descriptions of these issues are most likely to be helpful to the court.

The remediative component of assessments of testamentary capacity is likely to be an issue in situations where the testator's observed difficulties are fluctuating rather than static. This may be the case in situations in which observed functional deficits are related to psychiatric symptoms that may improve with appropriate treatment or cases of delirium. There may be situations in which the testator develops delirium after an infection or surgical intervention, and this condition is superimposed on a more static condition such as early Alzheimer's disease. When this occurs, it is prudent to perform a re-evaluation after the delirium has resolved, because it is not possible to determine an individual's baseline level of functioning until this has occurred.

Deceased or Incapacitated Testator

Clearly, the methodology for the evaluation of testamentary capacity is very different when the assessment is retrospective. This generally occurs when a will is contested after the testator has died, but can also occur under other circumstances. Changes in the will of a living testator may only come to light years after the changes were made. The testator may now be severely demented and no longer able to provide an account of his or her intentions at the time the will was changed. In such circumstances, assessment of the individual's current cognitive and emotional status does little to assist the court. In either case, the role of the evaluator is to gather as much information about the testator's cognitive and emotional status at the time the changes were made. Under such circumstances, it will be necessary to rely on a careful examination of the individual's medical and financial records as well as any other reliable sources of information such as collateral interviews of uninterested parties.

Summary

Neuropsychological assessment of testamentary capacity and undue influence should be structured around a methodological framework that emphasizes functional abilities and deemphasizes diagnoses. Additionally, such assessments should be informed by the relevant statute in the jurisdiction in which they are performed. Finally, determin ations of testamentary capacity and undue influence ultimately rest with the court and in the final analysis, testamentary capacity is determined by the trier of fact, typically a judge. For this reason, evaluations that provide comprehensive and descriptive information about the testator's functional abilities and cognitive and emotional status are maximally useful to the court.

Conflict of Interest

None declared.

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