COMPETENCY TO MAKE A WILL: TESTAMENTARY CAPACITY / UNDUE INFLUENCE...

Wills are generally contested either on the grounds that the testator lacked Testamentary Capacity (was incompetent to make a will at the time of signing it) or the testator, because of his/her mental state, was subject to Undue Influence (i.e. if there is evidence of coercion, manipulation, deception, compulsion, intimidation, etc.) or an Undue Influence secondary to a thought disturbance (such as delusions affecting the testator's free will in making decisions).

Isaac Ray (1807-1881), “the father of American forensic psychiatry” proposed that there was a role for a forensic psychiatrist in a will contest, as the psychiatrist has relevant knowledge to analyze available information in determining competency.

Testamentary Capacity - refers to an individual’s capacity to make a will. These evaluations are usually retrospective since the issue is most frequently raised after the testator’s death.

Since wills are usually contested after the testators death, forensic evaluations to determine Testamentary Capacity require careful review of medical, psychiatric, nursing home, pharmacy, and other relevant records in an attempt to reconstruct the mental state of the testator at the time of making the will. Friends, family members, acquaintances, and individuals who interacted with the testator around the time of making the will should be interviewed if available.

The reports should reflect the case law or the statutory requirements of a given jurisdiction. In general, the Forensic Psychiatrist performing the evaluation should determine whether or not the testator, at the time of making the will, had a psychiatric disorder, a medical condition, or a cognitive impairment, which could affect the testator’s ability to make a will. The evaluator should address the issues of whether or not the testator, at the time of making the will, had the capacity to understand, know, or recognize:

• That a will is being made
  
• The extent of (testator’s) estate or property
  
• Potential heirs (beneficiaries) of the estate and whether or not psychiatric or medical conditions impaired the testator’s ability to recognize or identify close relatives and friends
  
• The manner in which the will is made and distributes (testator’s) property
  

A testator with addiction to drugs or alcohol, if in a “lucid interval,” does not generally lack testamentary capacity. However, chronic use of drugs or alcohol may result in medical and psychiatric conditions that can impact a testator’s mental state or make him/her susceptible to undue influence.

Undue Influence – refers to manipulation, deception, intimidation or coercion, made by designing individuals, resulting in impairment of the ability of the testator to make free choices in distribution of the estate in the will.

In determining if influence was undue, the evaluator should distinguish between encouragements of a relative or a friend for a testator to remember him or her in his will, from deceptive, manipulative and coercive actions.

Undue Influence can result from actions by designing individuals (coercion, manipulation, deception, compulsion, intimidation, etc.) or be secondary to a psychotic process (such as delusions) affecting the testator’s free will in making decisions.

A presumption of Undue Influence usually arises when the beneficiary had actively participated in the preparation and execution of the will and had disproportionately benefited from it.

The party making the request should expect the report to address the following areas:

• Source of referral
  
• List of reference materials and of interviews utilized in the preparation of the report.
  
• Statement of non-confidentiality.
  
• Case law or statutory definitions for Testamentary Capacity or Undue Influence in a given jurisdiction
  
• Background information of the testator (reconstructed from available sources of collateral information)
  
• Psychiatric history of the testator
  
• Relevant medical history
  
• Substance abuse history.
  
• Review of pharmacy records
  
• Review of collateral information reconstructing the mental state of the testator at the time of signing the will and the time proximate to signing the will. These usually include nursing home records, witness accounts, notes and discharge summaries from recent hospitalizations, legal documents and transcripts, accounts of communications of the testator with others, etc.
  
• Diagnostic Impression
  
• Detailed account as to how the given diagnosis was reached
  
• Correlation of the testator's mental state and behavior with legal definitions for Testamentary Capacity and Undue Influence in a given jurisdiction.
  

The party making the referral is responsible for the provision of the necessary collateral information for the preparation of the report.

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