Objective: Challenges to wills on the basis of testamentary capacity are likely to increase due to a combination of economic factors, high prevalence of mental disorders in old age and the complexity of many modern families. This paper aims to advance the traditional criteria described in the Banks v. Goodfellow case that have been held as the standard for testamentary capacity. Geriatric consultants should be prepared to provide expert assessment in such cases.
Design: Retrospective case study.
Materials and Methods: The legal literature and case law relevant to testamentary capacity were reviewed. In addition, 25 consecutive medico-legal reports on testamentary capacity were analyzed according to co-morbid medical and psychiatric disorders as well as psychosocial and behavioral variables. All cases were retrospective post mortem and involved a multi-faceted approach to information gathering. Illustrative case vignettes are included.
Results: The typical profile for challenges to testamentary capacity included a radical change from a previous will (72%) where undue influence was alleged (56%), in a testator with no biological children (52%), who executed the will less than a year prior to death (48%). Co-morbid conditions were dementia (40%), alcohol abuse (28%) and other neurological/medical conditions (28%).
Conclusion: The complexity and subtlety of the issues in these cases highlight the need to go beyond the traditional Banks v. Goodfellow criteria. Special attention must be given to assessment of executive brain functions. Expert assessors should assess the capacity for appreciation of consequences of executing a will when there has been a radical change in the context of a complex or conflictual family environment. Testamentary capacity must not only be assessed as task-specific, but also as situation-specific.
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