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Assessing Testamentary Capacity: Some Sensible Advice

by Michael D. Chafetz, PhD, ABPP

The Problem

With the advancing age and mortality of the large post-war baby boom generation, there will be an increasing transfer of wealth. Much of this wealth will go to natural heirs, but many of these adult children will be disappointed when they discover that Dad has left most or all of the assets to his beloved "new" wife, or Mom has left the entire fortune to that wonderful young preacher she watched regularly on TV.

When challenged, these unpleasant discoveries form the basis of testamentary lawsuits that involve either the capacity of the donor to make the testamentary act, or whether there was undue influence on the part of a potential beneficiary leading up to the testamentary act. In Louisiana, a testator cannot be unduly influenced if she lacked testamentary capacity, for she is considered not to have capacity to make any will, even if influenced. On the other hand, weaknesses usually form the basis for susceptibility to influence; otherwise, the testator would be able to see through the ploy and put up some resistance.

The unpleasant discovery of a "new" will often prompts a rather human and natural thought: "Dad could not possibly have been in his right mind when he made this will." This belief is strengthened when the family watched Dad decline from being a robust man in his 70's with many continuing business interests, to a forgetful, impaired shadow of his former self in his late 80's. This is not the case when Dad is merely subject to normal aging processes, but rather has suffered decline due to a dementing illness such as Alzheimer's disease or multiple strokes.

Loss of Capacity

A "capacity" usually refers to the ability of an individual to perform a defined act, while "competency" is usually a matter of a specific legal question. The medicolegal framework under which clinical evaluators are asked to answer specific questions often renders these terms interchangeable. The term "testamentary capacity" appears to have gained more common use and will be the only term used in this article, whether to note the actual capacity or the legal requirement.

The more important point is that testamentary capacity is specific to the testamentary act. A testator may retain testamentary capacity but lack driving capacity or medical consent capacity. Evidence that Mom lacked financial capacity, while helpful to an analysis, is not sufficient to determine that Mom also lacked testamentary capacity. Even the fact that a testator has previously been interdicted is insufficient to prove testamentary incapacity.

The legal requirement of testamentary capacity is present in all state jurisdictions (Marson & Hebert, 2005). The rules about testamentary capacity are similar in all states but have language that varies from state to state. Louisiana rules, revised and "modernized" in 1991, require that the testator "must have the ability to comprehend generally the nature and consequences of the disposition that he is making" (La. Civ. Code art. 1477). The California Prob. Code Ann. 6100.5 states: "An individual is not mentally competent to make a will if at the time of making the will either of the following is true: (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will" (Streisand & Spar, 2008).

In both states, the requirements of capacity indicate that the competent testator must have the ability to comprehend, know, or recall, but not the actual comprehension, knowledge, or memory. In Texas, the concerns are phrased differently: A testator should be able "to collect in mind the elements of the business to be transacted and to form a reasonable judgment about it" (Flores, 76 S.W.3d at 630; Bracewell, 20S.W. 3d at 19).

Nevertheless, the particular concerns of a testamentary act, about which the testator must have the ability to comprehend, know, recall, or collect in mind are more generally recognized: (1) that the testator understands that he is making or amending a will; (2) that he knows something about the property to be disposed of; (3) that he knows the natural objects of his bounty, and (4) that he understands the disposition of the property (Melton, Petrila, Poythress, & Slobogin, 1997).

Brain Disease

A dementing illness such as Alzheimer's disease by itself may not be sufficient to deprive Dad of his testamentary capacity, because state laws usually honor a testator's wishes and rarely legalize roadblocks against the wishes of a testator. In fact, a challenger in Louisiana has a heavy burden: The challenger must prove by clear-and-convincing evidence that the testator lacked capacity or was unduly influenced. Coupled with the usual presumption of testamentary capacity, this burden helps stack the law in the testator's favor.

The brain does everything (i.e., your brain is reading these words). Brain functioning is lost as a dementing illness progresses or as the brain is subjected to the loss of blood flow and oxygen from multiple strokes. Alzheimer's Disease is the most common degenerative dementia. As the disease progresses, brain functions begin to decline. There is loss of verbal and visual memory formation, with progression to wandering and confusion. Eventually there is severe amnesia, with loss of attention and executive functioning. In more advanced stages, the sufferer may not realize that the woman she sees in the mirror is herself, and she may excuse herself to go talk to "the other lady" in the bedroom.

But has that person lost testamentary capacity? This is a highly specific question requiring a detailed analysis of that person's capacity (ability) to know and comprehend the significant elements of a testamentary act. If the entire estate is a prized bowling ball, and the demented testator has said, "I want that ball to go to Cousin Benji if I die," and if Cousin Benji is the only natural heir and caretaker, then that statement may satisfy all the requirements of capacity. An aphasic testator might not be able to tell anyone about the nature of his will, but still be able to identify the natural objects of bounty and the assets in his estate, and to gesture, point, and choose among various options. On the other hand, if a high functioning testator has a stroke that renders him unable to understand anything spoken to him, read to him, or that he attempts to read himself, he might not have capacity to execute a will, although he might even be able to drive.

Mere reading may mask a lack of understanding and thus does not necessarily indicate capacity. The ability to sign one's name is rather automatic, and also does not indicate testamentary capacity merely because the will is signed. On the other hand, an olographic will, if not guided, can give a wealth of information about the testator's intent and knowledge. The analysis of testamentary capacity must therefore be specific to each case, and must be detailed enough to provide relevant information about capacity.

Psychopathology

Many states also require that the testator be free of delusions or hallucinations that result in a testator devising her property in a way that she would not have done, but for the existence of the hallucinations or delusions (Spar & Garb, 1992). For example, if Mom was absolutely certain that her number two son implanted a receiver in her head to funnel thoughts from the devil to her, and to be free of this influence she would only give her estate to her number one and number three sons, then the will is probably not valid. Fortunately, modern psychopharmacology can often be used to restore capacity with respect to these problems.

The Analysis

Here we come to a fork in the road: 1) Is the testator dead? In this case, the examiner must render an "autopsy." In an "autopsy" of this nature, the examiner must carefully study the medical records to determine the nature and extent of the brain disease. It is most helpful to interview relatives and friends who knew the testator. Legal depositions in the case may also be of use. If there is video of the testator in the act of making the will, all the better, but especially if there is accompanying audio.

It is helpful for the examiner to analyze the fabric of the disease and decay. Producing a timeline of decay is most helpful. For the purpose of making this timeline, the records for years after the testamentary act are also helpful. This is because diseases have known progressions, and the examiner can then show the time along the decay in which the testamentary act was made. Coupled with statements of close friends and family during this time, the "autopsy" can be even more revealing.

It is not particularly helpful for an examiner to jump in in the middle of litigation and start popping off ideas based upon a few records. Without the fabric of decay and disease, these "hypotheses" get easily shot down much like when Dr. House knocks off the ideas of his Fellows on the popular TV show. A full understanding of the documented record, along with full analysis of the probable pathology, is important in getting it right.

2) Is the testator alive? If the testator is alive but the will is already made, a retrospective analysis must be done. This is like an "autopsy," but the testator may be available for interviewing if he is not demented and can appreciate the examiner's questioning. If he is demented, then the autopsy procedure described above will be most helpful.

If the will is not already made, this presents the testator and her attorney with a unique opportunity to document capacity at the time of making the will. Because of the nature of a legal contest, attorneys are well advised to avail themselves of an outside independent examiner. In this way, the attorney can avoid the complicated dual role of having assessed capacity while advocating for the estate in a will contest. The alert attorney will know that if the testator is depriving a natural object of a sizable inheritance, there will likely be a will contest, and it is far less expensive to document capacity now than to deplete the estate with a will contest.

The Analyzer

As Greiffenstein (1996; 2003) has discussed, neuropsychologists are in an excellent position to apply their knowledge base, background, and experiences in a testamentary capacity analysis. The whole point of neuropsychological examination is to analyze behavior and abilities with respect to brain functioning and pathology. Particularly for the living testator who is planning to execute a will, neuropsychologists have tests with known error rates, and can supply the trier of fact with relevant information as to what a testator understands. It is not surprising that the use of neuropsychologists in the courtroom has increased dramatically in the last five years, much more than the frequency of other professionals.

In this author's neuropsychological research, Chafetz (2007) has found several potentially promising predictors of testamentary capacity. These include word reception, which is essentially a person's ability to comprehend what is spoken to him, and recognition memory, a form of memory that breaks down later in a dementing illness. It will be important for research to continue in this vein to determine other markers for capacity, and to inform the legal community about how to measure testamentary capacity in a reliable and valid manner.

A Final Note

The nature of these cases compares to child custody cases, with family members pitted against one another, producing heartache and bitterness. Neuropsychologists involved in litigation may be well-versed with the adversarial context, and can use anti-biasing technique to promote the validity of their findings, but there is a better way. In child custody cases, the court often recognizes the importance of ordering a special master to handle the case. In this vein, the court-ordered neuropsychologist would have an easier time gaining access to opposing family members for critical interviews, and can thereby arrive at a deeper understanding of the case at hand.

Because psychology lies at the core of neuropsychology, it would also be possible for the neuropsychologist to arrange family therapy to promote healing and reconciliation. The courts might even consider ordering a family mediation process in order to arrive at a quicker settlement.

References

Chafetz, M.D. (2007). Predictors of testamentary capacity with reference to undue influence. National Academy of Neuropsychology (NAN) Scientific Program, Scottsdale, AZ.

Greiffenstein, M.F. (1996). The neuropsychological autopsy. Michigan Bar Journal, May, 424-425.

Greiffenstein, M.F. (2003). Testamentary Competence: Antemortem and Postmortem Neuropsychological Analysis. Newsletter 40, 21 (2), 7-8, 33-36.

Marson, D.C., & Hebert, K. (2005). Assessing civil competencies in older adults with dementia: Consent capacity, financial capacity, and testamentary capacity. In Larrabee, G.J. (Ed.). Forensic Neuropsychology (pp. 334-377). New York: Oxford University Press.

Melton, G.B., Petrila, J., Poythress, N.G., & Slobogin, C. (1997). Psychological evaluations for the courts: A handbook for mental health professionals and lawyers, 2nd Edition. New York, NY, US: Guilford Press.

Spar, J.E., & Garb, A.S. (1992). Assessing competency to make a will. Am. J. Psychiatry, 149, 169-174.

Streisand, A.F., & Spar, J.E. (2008). A lawyer's guide to diminishing capacity and effective use of medical experts in contemporaneous and retrospective evaluations. ACTEC Journal, 33, 180-194.