Evaluating Capacity to Make a Will
Psychological Autopsy and Assessment of Testamentary Capacity

By Stephen Noffsinger, MD | December 1, 2008

Dr Noffsinger is associate professor of psy­chiatry at Case Western Reserve University School of Medicine in Cleveland and chief of forensic services at Northcoast Behavioral Healthcare in Ohio. He reports no conflicts of interest concerning the subject matter of this article.

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In This Special Report:

Forensic Issues in Child Sexual Abuse Allegations, by Charles L. Scott, MD

Dangerously Paranoid?, by Suzanne Yang, MD

Insanity Defense Evaluations, by James L. Knoll, IV, MD and Phillip J. Resnick, MD

Evaluating Capacity to Make a Will, by Sthephen Noffsinger, MD

It is an ancient practice to state instructions for distributing one’s property after death. In Genesis 48, Jacob verbally bequeaths his property to Joseph, Joseph’s siblings, and Joseph’s 2 sons. Wills existed in ancient Greece and Rome, with restrictions. In Greece, property was passed from father to eldest son, who could not be disinherited. Solon, a lawmaker in the early sixth century bc, changed this practice. He passed reforms that allowed a childless testator to designate an adopted son to inherit the estate—an early form of a will. The Twelve Tables of Rome provided that in addition to personal property, the testator’s powers, duties, debts, and ancestral rights were distributed according to his will.¹

Fixed rules governed the inheritance of property in feudal England, so personal wills were not needed. After the Norman conquest of En­gland in 1066, primogeniture provided that the eldest son inherited his father’s estate; younger siblings were excluded. A landholder who died without living relatives forfeited his estate to the crown.

The Statute of Wills (1540), the Statute of Frauds and Perjuries (1677), and the Wills Act (1837) created basic requirements for a will. A will had to be in writing, signed by the testator, and witnessed by 2 disinterested parties. Gifts to witnesses or their spouses were not permitted. A will could be revoked only if another will was properly executed. Some of the American colonies adhered to primogeniture. Gradually, personal wills replaced fixed rules of inheritance. There is now an absolute right to dispose of one’s property after death as one wishes (freedom of testation).² Competent testators have every right to use their estates to financially assist those who brought them pleasure or comfort in life.³

Ordinary course of a will
The testator composes a written will that gives instructions for the disposition of his or her property after death. The testator may later revise his will if he has a change in personal circumstances or worth, or if he wishes to revise how his property is distributed. When a will is revised, earlier wills are automatically revoked. Once the testator dies, the executor carries out the will’s instructions by distributing the estate, under the supervision of a probate court.

Contested wills
The validity of a will becomes an issue only if contested. A will is contested by filing a lawsuit in probate court. Two legal bases for contesting a will exist—the testator was incompetent (lacked testamentary capacity) or was subject to undue influence when making the will.² Fewer than 3% of wills are contested. Of those contested, 15% are overturned.⁴

The increasingly aging population in the United States is more susceptible to medical conditions that can impair testamentary capacity or render the testator vulnerable to undue influence. These conditions include cancer (with or without brain involvement), cardiovascular disease (strokes, vascular dementia, heart failure), dementia, chronic renal or hepatic failure, metabolic disorders, infections, delirium, and/or adverse drug effects.² We can expect challenges to testamentary capacity to increase during the coming decades as the number of older adults increases.⁵

Contested wills are typically challenged by disgruntled family members who feel that they have been slighted. There are several reasons for contesting a will⁶:

• A later will that differs from an earlier will and that designates different beneficiaries.
• The testator disinherits family members who were expecting an inheritance.
• The testator becomes involved with a person whom family members question.
• The testator is mentally or severely physically incapacitated when the will is made.
• The testator is susceptible to the influence of others because of physical or mental illness, is unusually dependent on the influencing person, or is isolated from others.

Suicide does no negate a will. The contesting of a will focuses on the testator’s mental capacity at the time the will was written, ot at the time of death.⁶

When a will is contested, the court must consider the challenge and decide whether the will is valid. If the court upholds the will, its provisions are executed. The will that is voided for lack of testamentary capacity has no legal effect—it is void in its totality and the will made previous to the overturned will becomes effective. When a will is invalidated because of undue influence, only those specific clauses that were unduly influenced are declared void.⁷

In most states, a testator is presumed competent to make a will. The person who challenges the will has the legal burden of proving that the testator was incompetent or unduly influenced for the contesting of the will to be successful. However, if the testator was previously adjudicated to be incompetent and a guardian of person or estate was appointed, there is a presumption that the testator lacks testamentary capacity.⁶ A person under guardianship, however, may competently make a will, although he must prove competency at the time that the will is written. Most states adjudicate the contesting of wills by using the standard of a preponderance of the evidence. A few states require clear and convincing evidence.

Sprehe and Kerr⁶ analyzed 23 contested wills. Undue influence was alleged in 14 cases and proven in 5 cases. In all but 2 of the 23 cases, the testator’s age appeared to be over 70 at the time the will was made.

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