What Is Testamentary Capacity?

Testamentary capacity refers to an individual’s legal and mental capacity to make a will and is subject to local state or statutory case laws.  Generally, requirements for a will to be valid, must identify:

  1. The extent of estate or property
  2. Potential heirs who will benefit from the distribution of the estate
  3. Specific distribution the heirs will receive
  4. The mechanics of how the estate is to be distributed.

The civil courts are involved in contested civil competencies. If a case reaches the courts, it is usually because one party opines that the decision of another was incompetent and it has adversely effect the first party.  A forensic psychiatric mental health examination to assess competency is then ordered by the court or by either or both parties independently. The civil courts will then decide whether the entire will or parts of the will were created by a competent individual at the time the will was written individuals are presumed to be competent.

Expert Witness & Expert Testimony

Forensic psychiatrists have unique training, skill, knowledge and experience to act as an expert witness in civil settings to perform forensic mental health evaluations.  By providing an expert witness testimony or report, these professional evaluations assist the courts in their determinations of different civil competencies.

Burden of Proof

If someone lacks capacity when creating a will, the burden of proof to find that an individual was not competent to make or alter their will is placed on the individual(s) who are disputing and alleging the individual’s lack of competence.  Those individuals contesting the will usually have the burden of proof to provide evidence that the testator’s mental capacity effected the outcome of the will.

Sometimes video recordings are made of the testator, which reviews the contents of the will, the named heirs, and the extent of the estate. His overall functioning should be demonstrated in the tape.

Undue Influence

Due to family dysfunction and/or greed, wills are being disputed with increasing frequency. Testators should be made aware of this by their lawyers to prevent and minimize potential issues.  It is usually a disenfranchised heir or pseudo-heirs who bring litigation. Money may be only one of the motivations.

The competence of the individual making the will can become suspect when an individual has compromised intellectual functioning (unsound mind), most often due to a medical disorder, the influence of aging, or due to undue influence on the testator by another individual.

Although laboratory tests, scans and other medical information may be of use, it is the actual behavior, state of mind and the use of collateral sources of information that are more important in determining the testator’s competence.  Collateral sources of information might include individuals who interacted with the testator at about the time that he made or altered the will, business documents that indicate how he was handling his affairs, personal correspondences and the list can go on.

Undue influence needs to be proven to have occurred at the time the will was altered or composed. Close and intimate relationships by themselves do not necessarily cast doubt on testamentary capacity.

Examples of other ‘red flags’ that question testamentary competence may include unusual or bizarre requests or the presence of delusions (a fixed false belief that does not respond to logic).

A delusion may be present but it might not apply to and affect the testator’s competence. For example, the delusion that the government is specifically plotting against the testator by poisoning his food may not be relevant with regards to the testator’s competence.

I had the opportunity to participate as a forensic expert in the Anna Nicole case.  It was a great example of family dysfunction, greed and litigation for reasons other than the redistribution of wealth.

Please note that forensic psychiatrists offer unique training and skills that can help with expert witness and expert testimony that help make the process more tolerable and fair.