Evaluating Capacity to Make a WillPsychological Autopsy and Assessment of Testamentary Capacity

December 1, 2008

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.

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.

Incompetent to make a will
The legal definition of competence to make a will is essentially the same from state to state.2 At the time the will is signed, the testator must know:

• That he is making a will to dispose of his property after death
• The general nature and extent of his property
• Who would normally inherit his property (natural heirs)

Testamentary capacity also requires that the testator is able to form a rational judgment with respect to these 3 elements.8 The testator does not need to know the exact value of his property-an approximation is sufficient.9

Competence to make a will is a relatively low standard that requires less mental capacity than competence to execute a contract (wills, unlike contracts, have no adversarial interest), consent to treatment, or to stand trial.

A man with early dementia composes a will, leaving his home to a neighbor. He fails to provide instructions regarding disposition of his sizable bank accounts and other assets. The testator fails to acknowledge his son or daughter (both living out of state) in the will. Four years later the man dies. His son and daughter contest the will on the grounds that their father lacked testamentary capacity when he wrote the will.

In this example, the testator probably did lack testamentary capacity when he wrote his will. He did not understand the nature of his estate (failing to designate who would inherit his bank accounts and assets) or that his children were his natural heirs (he failed to mention his children).

The presence of a mental disorder does not automatically equate with lack of testamentary capacity. To affect competency, symptoms must directly impair the testator’s testamentary capacity.4

A man disinherits his daughter because, in his delusional state, he believes that she is poisoning his food.

In his delusion, a man believes that he is being monitored by government authorities. He leaves most of his estate to his children and the rest to charity.

In Example 2, the testator lacks testamentary capacity because his delusions affect his reasoning and cause him to disinherit his daughter. In contrast, in Example 3 the testator has testamentary capacity because his delusions do not impair his reasoning regarding his will.

Dementia associated with Alz­hei­mer disease is becoming increasingly prevalent, and it may lead to an increase in the number of contested wills. The Mini Mental State Examination (MMSE) and the Revised Cam­­bridge Examination for Mental Disorders of the Elderly (CAMDEX-R) are equally accurate predictors of testamentary capacity. Mild cognitive impairment on the MMSE (score of 20 to 26) was associated with a clinical finding of testamentary capacity in 93% of cases; moderate to severe cognitive impairment on the MMSE was more closely associated with lack of testamentary capacity.10

Undue influence
Undue influence is the influence of another person on the testator that substitutes the wishes of the other person for those of the testator.7 Susceptibility to undue influence depends on the intellectual capacity and mental status of the testator. It requires relatively less influence to control the will of a person whose functional abilities are impaired by mental illness or physical conditions that affect mental functioning.7 The testator’s age and general debility are relevant, as is a dependent relationship between the testator and the person unduly influencing the will.

Undue influence requires, in addition to a vulnerable testator, suspicious actions by the person alleged to have unduly influenced the will. The actions of the person allegedly exerting pressure or influence are assessed. There is a distinction between influence and undue influence. Influencing the testator by kindness and good deeds is not undue influence. Undue influence requires coercion, compulsion, and/or physical or psychological restraint so that the will does not represent the wishes of the testator. Persistent requests for an inheritance, urgings that the testator cannot resist, threats never to see the person trying to influence the testator again, or outright threats of harm constitute undue influence. Seclusion of the testator or denial of access to relatives may also indicate undue influence.7 Witnesses who observe the interaction between the testator and the person alleged to have exerted undue influence may provide evidence of inappropriate behavior.

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.

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.



1. Robinson DN. Wild Beasts and Idle Humours: The Insanity Defense From Antiquity to the Present. Cambridge, MA: Harvard University Press; 1996.
2. Redmond FC.Testamentary capacity. Bull Am Acad Psychiatry Law. 1987;15:247-256.
3. Frolik LA.The strange interplay of testamentary capacity and the doctrine of undue influence: are we protecting older testators or overriding individual preferences? Int J Law Psychiatry. 2001;24:253-266.
4. Regan WM, Gordon SM. Assessing testamentary capacity in elderly people. South Med J. 1997;90:13-15.
5. Shulman KI, Cohen CA, Kirsh FC, et al.Assessment of testamentary capacity and vulnerability to undue influence. Am J Psychiatry. 2007;164:722-727.
6. Sprehe DJ, Kerr AL. Use of legal terms in will contests: implications for psychiatrists. Bull Am Acad Psychiatry Law. 1996;24:255-265.
7. Perr IN. Wills, testamentary capacity and undue influence. Bull Am Acad Psychiatry Law. 1981;9:15-22.
8. Ohio Jury Instructions §363.03 and §363.05.
9. Arie T. Some legal aspects of mental capacity. BMJ. 1996;313:156-158.
10. Roked F, Patel A.Which aspects of cognitive function are best associated with testamentary capacity in patients with Alzheimer’s disease? Int J Geriatr Psychiatry. 2008;23:552-553.
11. Spar JE, Garb AS.Assessing competency to make a will. Am J Psychiatry. 1992;149:169-174.12. Gutheil TG. Common pitfalls in the evaluation of testamentary capacity. J Am Acad Psychiatry Law. 2007;35:514-17.

Evidence-Based References
Roked F, Patel A. Which aspects of cognitive function are best associated with testamentary capacity in patients with Alzheimer’s disease? Int J Geriatr Psychiatry. 2008;23:552-553.
Sprehe DJ, Kerr AL. Use of legal terms in will contests: implications for psychiatrists. Bull Am Acad Psychiatry Law. 1996;24:255-265.