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  1. Download Full PDF Package. This paper. ... (testator/testatrix) to make synonymously,1,2 whereas others consider these 2 terms as 2 his or her own will in a clear and ...

    • Construct of Testamentary Capacity
    • Construct of Undue Influence
    • Role of The Expert Witness Or Assessor
    • Documentation For Assessment of Testamentary Capacity and Undue Influence
    • Common Cognitive Screening Tests
    • Summary and Recommendations

    A testator (male) or testatrix (female) is the person who is executing a will; here we use the term testator in a general sense for both genders. Testamentary capacity refers to the legal status of being capable of executing a will. All mental capacities are determined by two fundamental components: an ability to understand the relevant facts and an appreciation of the consequences of taking or not taking specific actions. Testamentary capacity, as defined in Common Law and U.S., Canadian, and English jurisdictions, addresses its task-specific nature as opposed to the global status of mental illness (3 , 4) . In Banks v. Goodfellow , a commonly cited English case (5) , John Banks, the testator, clearly suffered from a chronic and serious mental disorder but was deemed capable with respect to the execution of his will because his delusions did not affect the distribution of his assets. The Banks v. Goodfellow criteria are outlined in Table 1. In U.S. jurisdictions, the definition of...

    Undue influence is a strictly legal concept; the onus of proof is on those claiming undue influence. Frolik (15) and Spar and Garb (16) have attempted to delineate the indications of undue influence, which are summarized in Table 2. Frolik argues that the doctrine of undue influence allows the courts to maintain a relatively low threshold for testamentary capacity and hence to preserve the principle of autonomy and individual freedom with respect to the distribution of one’s assets. This is exemplified in a situation that is relatively uncomplicated and unconflicted. In such a situation, a testator with moderate cognitive impairment could still be considered to have testamentary capacity. However, if the circumstances are more complex or there is a suggestion of undue influence, the legal threshold becomes higher and calls for more careful probing of rationale at the time of the execution of the will. Historically, the notion of undue influence emphasized the concept of coercion, wh...

    At the time of the drafting of the will, lawyers make an initial assessment of testamentary capacity but may call upon experts to assist in specific circumstances. Experts may include neuropsychiatrists, geriatric psychiatrists, neuropsychologists, and others with a particular interest in capacity determinations. The role of the expert may involve confirmation of testamentary capacity when cognition or mental state is a concern. Similarly, experts may be asked to assess the potential role of undue influence. After the death of the testator, the will may be challenged, and experts can be called upon to give a retrospective opinion regarding capacity or undue influence. These assessments should always be made in the context of a careful review of available information, such as direct interview with the testator when alive, interviews with persons who had firsthand contact and experience with the testator, reviews of medical records, examinations for discovery, and legal documents. The...

    In the absence of a validated assessment instrument, we propose that in addition to the traditional Banks v. Goodfellowcriteria, the following issues should be addressed and documented in a forensic assessment, whether it is contemporaneous or retrospective: 1. Rationale for any dramatic changes or significant deviations from the pattern identified in prior wills or previous consistently expressed wishes regarding disposition of assets. 2. The appreciation of the consequences and impact of a particular distribution, especially if it deviates from or excludes “natural” beneficiaries, such as close family members or spouses. 3. Clarification of concerns about potential beneficiaries who are excluded from the will or bequeathed lower amounts than might have been expected—that is, ruling out the presence of a specific delusion or overvalued idea that influences the distribution. 4. Evidence of the presence of a specific neurologic or mental disorder that may affect cognition, judgment,...

    Clinicians tend to use a small number of cognitive screening tests that may be referred to in medical records or expert reports. These tests assess higher-level brain functions that control initiative, motivation, planning, impulse control, capacity for abstract thinking, and the exercise of judgment. The identification of subtle impairment of these functions in the context of a complex environment could easily produce a vulnerability to undue influence and affect testamentary capacity (21) . Assessors of testamentary capacity and undue influence and the courts must be able to interpret the significance of these commonly used tests. Clinicians and legal experts must understand that cognitive tests are not diagnostic of dementia and cannot be used as a measure of capacity. Their value lies in the ability to screen for cognitive impairment and to reflect changes in cognition over time. The Mini-Mental State Examination (MMSE) and the clock-drawing test are the two most commonly used c...

    In the case described, there are a number of suspicious circumstances, including a dramatic change in Mr. A’s last will from previous wills and from wishes that had previously been consistently expressed to his stepdaughter. There was an unnatural disposition involving an estranged stepson who appeared at the last minute. In addition, there are concerns about Mr. A’s cognition, perception, and judgment, given evidence of early cognitive impairment that was later confirmed as a dementia only 1 year after the execution of the last will. Whether in retrospect one would declare the testator incapable purely because of cognitive issues is questionable. However, in light of the clear vulnerability caused by Mr. A’s early dementing illness, the impact of influence becomes much greater given that the beneficiary initiated the procurement of the will and gained undue benefit compared with the devoted stepdaughter. It seems likely that the stepson took advantage of Mr. A’s paranoid thinking,...

    • Kenneth I Shulman, Carole A Cohen, Felice C Kirsh, Ian M Hull, Pamela R Champine
    • 70
    • 2007
  2. Common pitfalls in the evaluation of testamentary capacity. ... Download full-text PDF Read full-text. ... The testator/testatrix with intact TC has realistic perception of his or her property ...

  3. Dec 18, 2017 · 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.

    • Panagiota Voskou, Athanasios Douzenis, Alexandra Economou, Sokratis G. Papageorgiou
    • 5
    • 2018
  4. This paper focuses on the contemporaneous assessment of testamentary capacity by an “expert clinician”. “Contemporaneous” or “lifetime” assessment refers to the assessment of a testator/testatrix (hereafter referred to as testator) while alive and in close temporal proximity to the execution/signing of the will.

    • Kenneth I. Shulman, Carmelle Peisah, Robin Jacoby, Jeremia Heinik, Sanford Finkel
    • 30
    • 2009
  5. Download full-text PDF Read full-text. ... Since contemporaneous assessment of testamentary capacity can be a powerful influence on the outcome of such challenges, there will be an associated ...

  6. 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.

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