Deathbed wills: assessing testamentary capacity in the dying patient

The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity

OBJECTIVES

Physicians and other mental health experts are increasingly called on to assist the courts with the determination of testamentary capacity. We aim to improve the understanding of the retrospective assessment of testamentary capacity for medical experts in order to provide more useful reports for the court's determinations and to provide a methodology for the retrospective assessment of testamentary capacity.

METHOD

Medical experts with experience in the retrospective assessment of testamentary capacity collaborated with lawyers who practice estate litigation. The medical literature on the assessment of testamentary capacity was reviewed and integrated. The medical experts provided a clinical perspective, while the lawyers ensured that the case law and legal perspective were integrated into this review.

RESULTS

The focus and limitations of the medical expert are outlined including the need to be objective, nonpartisan, and fair. For the benefit of the court, the medical expert should describe the nature and severity of relevant medical, psychiatric, and cognitive disorders, and how they may impact on the specific criteria for testamentary capacity as defined by the leading case of Banks v Goodfellow. Medical experts should opine only on the issue of vulnerability to influence and defer to the court to determine the facts of the case regarding any influence that may have been exerted.

CONCLUSIONS

Although the ultimate determination of testamentary capacity is a legal one, medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the criteria for testamentary capacity.

Neuropsychological autopsy of testamentary capacity: Methodology and issues in the elderly

The forensic assessment of testamentary capacity is a topical issue given the prevalence of dementia illnesses and the increase in the complexity of modern financial and family structures. Although a contemporaneous assessment would be desirable, the majority of situations require a retrospective assessment of the mental state a deceased individual. Neuropsychologists, independently or as part of a board of consultants, are, therefore, frequently requested to give an expert opinion of the competence of cognitively impaired elderly testators.This paper offers a guide for carrying out a neuropsychological autopsy, namely the process of posthumous evaluation, for determining testamentary capacity. Taking into account the recent literature on the assessment of testamentary capacity, we propose a three-phase procedure for carrying out the neuropsychological autopsy in the forensic context. The neuropsychological autopsy of testamentary capacity is based on the meticulous, chronologically structured evaluation of any medical documents, available psychometric data, along with the critical examination of any source of information about the cognitive level of functioning of the deceased person at the time of the will.

The Geriatric Forensic Psychiatry Rotation at University of Chicago: Utilization and Educational Benefit of a Subspecialty Rotation in Psychiatric Residency Training

Ten years ago, the University of Chicago Department of Psychiatry and Behavioral Neuroscience established a geriatric forensic psychiatry rotation for 4th-year psychiatry residents as one option in a required experience in forensic psychiatry. The rotation’s primary emphasis was to learn about cases of testamentary capacity and undue influence. The program was supervised by a senior faculty member, an experienced clinician who was board-certified in Geriatric Psychiatry.

Mapping dementia and cognitive decline in testamentary capacity

Cognitive assessment is central to the evaluation of testamentary capacity. Such assessment is currently performed in a subjective, unreliable and non-standardized manner. Dementia, a cognitive illness, poses one of the largest threats to testamentary capacity in modern society. A better understanding of the ways in which dementia related cognitive impairment can affect a testator's ability to meet the relevant legal criteria to make a will is needed. A review of the literature over the past ten years focusing on what cognitive abilities are required to satisfy the legal criteria for testamentary capacity has highlighted an alarming scarcity of work in this area. There is little discussion spanning beyond general acknowledgement of the importance of memory and executive function. The specifics of how cognitive impairment impacts the four limbs of Banks v Goodfellow are rarely addressed. Several additional areas of cognitive function of importance to assessing testamentary capacity are the subject of this article.

Testamentary Capacity Assessment: Legal, Medical, and Neuropsychological Issues

INTRODUCTION

The increase in the aging population and the number of patients with dementia led to the research in older adults' capacity assessment over the last 3 decades. Many cases of contested wills occur due to lack of testamentary capacity (TC), especially in cases of dementia.

AIM

Purpose of the present study was to overview the legal, medical, and neuropsychological aspects of TC as well as the instruments used for TC assessment.

FINDINGS

The testator/testatrix with intact TC has realistic perception of his or her property value, lack of psychopathology affecting contact with reality, and intact intention of how and to whom he or she will dispose his or her assets. It is frequent for the health practitioners to serve as "gold standards assessors" by examining an individual's ability to make a valid will and giving evidence to the court to support or not a will contest. The TC assessment is a complex process of clinical and legal practice requiring usually a variety of methods, that is, interviews, evaluation of clinical records, and administration of neuropsychological instruments.

CONCLUSION

The evaluation of TC is a multidimensional process that integrates both the legal and medical field, requiring a collaborative approach to its definition and assessment.

Will-making in Irish nursing homes: Staff perspectives on testamentary capacity and undue influence

Allegations of lack of testamentary capacity or of undue influence are grounds for many disputed wills. Some people who make (or change an existing) will are resident in a nursing home. A substantial proportion of this population have cognitive or communication difficulties or are physically frail, and concerns regarding testamentary capacity or undue influence may be more likely to arise as a result. A questionnaire examining the experiences and views of staff regarding will-making by nursing home residents was posted to the Directors of Nursing of a random sample of 148 of the approximately 600 nursing homes in the Republic of Ireland and 81 responded. Over 10% of respondents reported seeing cases where they felt a resident who lacked capacity was visited by a solicitor or where a resident was placed under undue pressure to make or change a will or both. In most such cases, staff felt they could do little to intervene. In general, responses to the questionnaire suggested staff misunderstanding of the confidential nature of the relationship between a solicitor and a client and that respondents had an exaggerated view of the power and responsibility of doctors and of family members to influence residents' decisions and interactions with solicitors regarding will-making. This study suggests the need for improved Guidelines for staff regarding will-making in residential care including advice on how to proceed where concerns including undue pressure arise.

Limits on testamentary freedom for people with dementia in Albania: Innovative Practice

The extent to which dementia affects a person's testamentary capacity has been the subject of much litigation with some countries introducing legal tests to assess capacity. In light of substantial societal change in Albania in the last two decades and an epidemic of property litigation, Albanian legal practice is witnessing an increasing number of attempts to posthumously nullify wills. Plaintiffs are mainly relatives of the deceased testator who are unhappy with the quantity or quality of the property they have inherited. Based on plaintiffs' claims, solicitors may request expert neuropsychiatric reviews postmortem, often basing their position on prescription drug use by the testator during his/her last years of life. The authors discuss ethical issues intrinsically related to the difficult role of a potential expert witness in these litigation cases.

Too ill to will? Deathbed wills: assessing testamentary capacity near the end of life

Assessing testamentary capacity in the terminal phase of an illness or at a person's deathbed is fraught with challenges for both doctors and lawyers. Numerous issues need to be considered when assessing capacity for a will. These issues are exacerbated when such an assessment needs to be undertaken at the bedside of a dying patient. The nature and severity of the illness, effects on cognition of the terminal illness, effects of medication, urgency, psychological and emotional factors, interactions with carers, family and lawyers, and a range of other issues confound and complicate the assessment of capacity. What is the doctor's role in properly assessing capacity in this context and how does this role intersect with the legal issues? Doctors will play an increasing role in assessing testamentary capacity in this setting. The ageing of society, more effective treatment of acute illness and, often, the prolongation of dying are only some of the factors leading to this increasing need. However, despite its importance and increasing prevalence, the literature addressing this challenging practical area is scarce and offers limited guidance. This paper examines these challenges and discusses some practical approaches.

Last wills and testaments in a large sample of suicide notes: implications for testamentary capacity

BACKGROUND

The leaving of a will prior to death by suicide is a relatively unexplored area.

AIMS

To determine the frequency and details of will content in suicide notes.

METHOD

Coroner records for 1565 deaths by suicide in Toronto (2003-2009) were reviewed for (a) will content and (b) the presence of depression, psychotic illness, dementia and intoxication prior to death.

RESULTS

In total, 59 (20.7%) of 285 available suicide notes were found to have will content. Of those who left a will, 43 (72.9%) were reported to have a major mood or psychotic disorder, but none had dementia. Fifteen of 19 toxicology samples showed alcohol, sedative hypnotic/benzodiazepine, opioid and/or recreational drugs were present.

CONCLUSIONS

A substantial minority of suicide notes may also include testamentary intent. The observed high rate of mental illness and substance use around the time of death has important clinical implications for understanding the mindset of people who die by suicide and hence also legal implications regarding testamentary capacity.