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

Stephen Noffsinger, MD

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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EXAMPLE 4
A woman with borderline intellectual function and debilitating medical illness has inherited sizable assets from her parents. The woman depends on a live-in home health aide. The aide repeatedly asks the woman to revise her will. The aide tells the woman that she will no longer provide in-home assistance unless the woman revises her will and leaves the estate to the aide. A month before her death the woman revises the will, leaving her estate to the aide and disinheriting her children.

In Example 4, the components of undue influence exist—a vulnerable testator, a dependent relationship, repeated requests to be named in the will, the threat that the caregiver will withdraw much-needed assistance. Such influence culminated in a revised will that named the caregiver as beneficiary, which could probably be successfully contested by the children.

Role of the psychiatrist
The psychiatrist may be asked to evaluate testamentary capacity and/or undue influence in 2 contexts.¹¹

Psychological autopsy. A testator has died and the will is contested. The psychiatrist retrospectively assesses the testator’s testamentary capacity or susceptibility to undue influence when the will was written (usually months or years earlier). The psychiatrist reconstructs the testator’s mental state at the time the will was written using medical records and any existing information from relatives, neighbors, and the attorney who prepared the will. The psychiatrist should look for evidence (or lack thereof) of symptoms of cognitive impairment that may affect the components of testamentary capacity. Likewise, critical evidence of mood or psychotic symptoms that may have impaired the testator’s rational judgment at the time the will was written may be found in the records. The psychiatrist must disclose to the court that he had not personally in­terviewed the testator but that his opinion is based on the available information.

Psychiatrists may be helpful in describing how the testator’s personality style, in combination with physical or mental illness, made the testator vulnerable to the influence of others. For example, a testator with a dependent personality style may be more susceptible to undue influence than someone who is not.⁴

Contemporaneous assessment of testamentary capacity. The testator requests an evaluation to document that he is competently making or changing his will. This commonly occurs when a testator with a sizable estate changes his will, or knows that he is writing a will that may be challenged because he is distributing his property in an unexpected fashion. It is, of course, much easier to demonstrate competence in a living testator than in a person “examined” in a psychological autopsy.

The examining psychiatrist should attempt to⁴:

• Review relevant medical/psychiatric records
• Obtain the estimated value or nature of the estate from the attorney
• Understand who the natural heirs are
• Understand who is likely to challenge the will and why
• Understand whether the new will makes substantial changes from previous wills—and why

In addition, a thorough mental status examination of the testator is essential. The specific elements of testamentary capacity should be assessed, and the psychiatrist should inquire as to the testator’s understanding of the nature and purpose of the will. The testator should state his understanding of the size of the estate, how the property is to be dis­tributed, and describe the reasoning behind his decision to include or exclude potential heirs. The testator’s estimate of the nature/value of his estate can be compared with information provided by the attorney. If subtle impairments exist, neu­ro­­psy­cho­­­logical testing should be considered. Finally, videotaping the exam­ination may be useful to preserve evidence for a court challenge.

Summary
The evaluation of contested wills provides unique challenges to the psychiatrist.¹² Common errors that psychiatrists make in evaluating tes­­-t­amentary capacity are failure to presume competence, failure to allow for unexpected bequests, failure to obtain accurate lists of assets, reliance on a diagnosis or structural brain changes rather than on functional criteria, confusing impairments on standardized tests with failure to meet relevant criteria, and automatically equating delusions with lack of testamentary capacity.

 

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