LEGAL ISSUES

18 Clinical Geriatrics June 2009

T estamentary capacity, the ability to make a will, is alegal issue that physicians are frequently, eitherdirectly or indirectly (eg, records), involved with.

Approximately 3% of all wills will be challenged, withabout 1% being found invalid.1,2 Often, when a will ischallenged, the individual’s estate remains in probate foryears, incurring expenses and causing hardships and frus-trations for families and friends.3

In the United States, legal challenges to wills becamecommon during the mid-1800s for three reasons.1 The firstreason was because a larger percentage of the populationwas beginning to acquire wealth, resulting in more legalchallenges over issues of inheritance. The second wasbecause of “new” medical and legal theories regardinginsanity and mental illness, which were espoused by indi-viduals such as Isaac Ray, MD, in A Treatise on the MedicalJurisprudence of Insanity (1838).1 The third was legal ambi-guity regarding what constituted a sound mind. BenjaminRush, MD, one of the founding figures in American psy-chiatry and a signer of the Declaration of Independence,wrote, “There are instances in which madmen talk ration-ally, but write incoherently.” Because of Rush’s influence,this concept of ambiguity became the basis for breaking awill when no clear evidence of insanity was present exceptfor an upset heir.1

The frequency with which wills are challenged is expect-ed to increase during the 21st century for a multitude ofreasons, some of which are similar to factors that occurredin the 1800s.4-8 Before the recent financial troubles, it hadbeen estimated that $41 trillion of wealth would be trans-ferred before 2050 by means of inheritance.3 Legal andmedical systems are again having to fine-tune legal con-cepts, which are being strained by the fact that individuals

are living longer and, therefore, are more likely to experi-ence symptoms of dementia around the time wills are writ-ten or the individual dies.8-10 Recent figures indicate that4.5 million persons in the United States have Alzheimer’sdisease (just one of many causes of dementia), twice asmany as in 1980, and this increasing trend is expected tocontinue.11 Typical family structures have become morecomplicated since the 1800s (eg, stepchildren, frequency ofdivorce, family members living in different legal jurisdic-tions), resulting in more people laying claims to and chal-lenging inheritances.4-6

Unfortunately, most doctors, even those who primarilysee patients of advanced years, are not knowledgeableabout key issues surrounding testamentary capacity. Astudy in 2002 found that only 7% of general practitioners,psychiatrists, geriatricians, and medical students near com-pletion of their training could answer basic questionsregarding testamentary capacity.12 A physician’s lack ofknowledge concerning testamentary capacity serves ourpatients poorly (Table I). We must be knowledgeable if weare to help our patients when they seek our advice aboutissues such as making wills, initiating advance directives,

Testamentary Capacity: History, Physicians’ Role, Requirements, and Why Wills Are Challenged Ryan C.W. Hall, MD, Richard C.W. Hall, MD, Wade C. Myers, MD, and Marcia J. Chapman

Dr. Ryan Hall is an Affiliate Instructor at the University of SouthFlorida, Tampa, and is a 2006 Rappeport Fellow; Dr. RichardHall is Courtesy Clinical Professor of Psychiatry, University ofFlorida, Gainesville, and Affiliate Professor, Department of Psychiatry and Behavioral Medicine, University of South Florida; Dr. Myers is Professor and Chief, Division of Child and Adolescent Psychiatry, and Director, Forensic Psychiatry Program, University of South Florida; and Ms. Chapman isResearch Assistant to Dr. Richard Hall and Dr. Ryan Hall.

TA

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e I General Legal Terms and Definitions

Associated with Wills

Testamentary competency: legal concept of

being capable of executing (making) a will

Competency: legal definition defined by a judge

Capacity: medical determination made by a

doctor indicating that an individual understands

relevant facts and appreciates potential out-

comes

Codicil: amendment to an existing will

Testator: historically referred to a man who

made a will (became a gender-free term)

Testatrix: historically referred to a woman who

made a will

Holographic will: handwritten will

State law of intestacy: what happens when no

valid will exists

Testamentary Capacity

Clinical Geriatrics June 2009 19

defining health surrogates, and other legal matters relatedto healthcare and death. In addition, if there is a legal chal-lenge to a will, our medical records are likely to become keydocuments in subsequent legal actions and should addressexpected key issues and facts.

Brief History of Testamentary Law All societies, whether through religious practice or

some form of governmental decree, have a system todetermine inheritance. This article will focus on Romanand English law since they are the primary basis for manyof the current laws in the United States.1,13

Early Roman law developed a system whereby a person’sguardianship and control of his or her property was deter-mined by his or her paternal relatives. In 529-534 AD,Emperor Justinian created the Corpus Juris Civilis (Body ofCivil Law), a unified collection of fundamental works ofjurisprudence (legal philosophy) dating back to the rule ofEmperor Hadrian (76-138 AD). The Corpus Juris Civilis(also known as Roman Law, Code of Justinian) became thebasis for Canon Law (the ecclesiastical law of the CatholicChurch).14 The Corpus Juris Civilis recognized that it was“Soundness of mind, not health of body, [which was]required of a testator when he makes a will.”1,13

By the 1100s, when Rome’s influence over northernEurope was beginning to wane, Anglo-Saxon law estab-lished the inheritance pattern of “primogeniture,” wherethe eldest son inherited the family estate and title.1,13,15 In1540, Henry VIII passed the Statute of Wills, whichallowed competent landowners to “bequest by will” howtheir estates would be disposed of instead of them simplypassing by lineage.1,15 The Statute of Wills and the 1677Statute of Frauds also established other practices of will-making that exist today, including that a will must be inwriting, a will must be signed by the testator, and the sign-ing of the will needs to be witnessed by at least two otherpersons.1,15,16 The Statute of Wills also made the ability tocreate a will a statutory right (governmentally defined, nota fundamental or natural right), and one that could onlybe engaged in by an individual who had a “sound and dis-posing mind.”1 These two principles gave the courts per-mission to comment on the conveyance of property post-mortem and also raised the question of who would deter-mine if a testator had a “sound and disposing mind.”1

In the 1800s, there were two competing views inAnglo-Saxon law on what determined competence. Thefirst, highlighted in the 1848 English case of Waring vWaring, is known as the “perfect memory rule.”13,17 Thisrule required an individual to be “in a perfect mentalstate” in order to execute a will, since determining thedegree by which a mental illness hindered one’s ability towrite a will was considered beyond the court’s ability.13

One was either all sound or all unsound. The second view

of competency evolved from the 1848 Georgia case ofPotts v House where the “mere glimmer rule” wasdefined.13,18 This rule required an individual only “to havethe mere glimmer of reason” in order to execute a will andprotect the individual’s testamentary rights.18

The generally accepted criteria for determining whetheran individual was competent to make a will in countriesthat followed the Anglo-Saxon legal tradition was finallydetermined in 1870 by Lord Cockburn in the case of Banksv Goodfellow.13,19,20 In his written opinion, Lord Cockburndefined the five basic requirements for determining testa-mentary capacity. These criteria have become known as“Lord Cockburn’s Rule” and are still the basis for mostAmerican and English commonwealth inheritance laws, aswell as those in several countries outside of the common-wealth.10,13,21 Of historical interest, it is known that LordCockburn was aware of Isaac Ray’s A Treatise on the MedicalJurisprudence of Insanity (1838). Lord Cockburn read fromit when he defended Daniel McNaghten during a prece-dent-setting insanity trial in 1843.20 In addition, one yearafter the Banks v Goodfellow decision, Isaac Ray testified inthe Pennsylvania case of Pidcock v Potter, where in his tes-timony he reached a conclusion about testamentary capac-ity similar to that elucidated by Lord Cockburn.22

It is also of historic interest to note that Lord Cockburnhad no legitimate heirs to leave his title to, although he hadone illegitimate heir to whom he was not able to pass histitle.20 It is interesting that both Henry VIII and LordCockburn, the two individuals who did the most to shapecurrent legal concepts regarding wills, had concerns regard-ing heirs.

Lord Cockburn’s Rules The first of Lord Cockburn’s rules requires that a testa-

tor understand the nature of the act he or she is engagingin. The individual must know that he or she is writing awill and what a will is (ie, a legal document that determineshow assets are to be distributed). The second rule is thatthe individual has to appreciate the effect of his or her act(eg, distribution of wealth). The third is that the individualmust know the extent of his or her bounty (eg, property) inorder to be able to appreciate the significance of the deci-sions he or she is making. The fourth is that an individual“shall be able to comprehend and appreciate the claims towhich he ought to give effect” (eg, those who should beincluded and excluded) or, as it is commonly phrased incurrent language, “know their natural heirs.”8,19,21,23 Thefinal component of Lord Cockburn’s rules is “That noinsane delusion shall influence his will.”19 In the case ofBanks v Goodfellow, the individual who wrote the will wassuffering from the paranoid delusion that a factious indi-vidual was trying to harm him.6,13,19 During the course ofthe trial, it was determined that the delusion did not influ-

Testamentary Capacity

20 Clinical Geriatrics June 2009

ence Mr. Banks’ decision to leave his money to a niece bymarriage rather than some remote blood relatives.6

Cockburn’s rules are superior to the “perfect memory” and“mere glimmer” rules in that they are clear, concise, andless subjective in their application and more focused onwhere the trier of fact (eg, judge or jury) should focusattention to determine whether the testator does, in fact,have “capacity” to execute a will (Table II).

Why Wills Are Challenged and theQuestion of Undue Influence

In a 2005 review of why wills are challenged, Shulmanet al5 found two common reasons for challenges and twocommon characteristics of wills that are challenged. Theprimary reason a will was challenged was due to a dramat-ic or “radical” change from a previous will or inconsis-tently expressed wishes of the testator (72%). The secondreason was because of alleged undue influence (56%).The characteristics of wills that were challenged included:(1) cases where the decedent had no biological children(52%); and (2) cases where the will was written less thanone year prior to the testator’s death (48%). The most fre-quent comorbid psychiatric conditions found in caseswhere wills were challenged included: (1) dementia(40%); (2) alcohol abuse (28%); and (3) other neurolog-ical/psychiatric conditions (28%). These medical condi-tions/states provided a strong basis for challenge and areoften related simply to aging or to a concurrent history ofpsychiatric disorder/substance abuse. (See the section on“The Medical Professional’s Role When Wills AreChallenged” for additional information on illnesses,including dementia, that put persons at high risk for hav-ing their testamentary capacity challenged.)

Challenges based on undue influence, historically, weremost likely to be successful.15 Undue influence occurs inrelationships where there is a power imbalance or a depend-ency, and where the power imbalance is used to influence(eg, coercion, compulsion, deception) the weaker party tosecure changes in how assets are distributed to the strongerindividual. Although the exact legal definition of undueinfluence changes from state to state, the above descriptioncontains the general notions found in most jurisdictions(see box on this page).24,25 Undue influence can be exertedby family members, “friends,” professionals (eg, lawyers,accountants, physicians, spiritual leaders), and/or caretak-ers.25 Undue influence can be difficult to prove. Often,courts will look for evidence of harassment/pressure, threatsof abandonment, or intentional lies that result in negativefeelings to other heirs.2,26 Rarely are overvalued friendships,increased attention, the rendering of services, or insincere orexcessive praise or flattery considered enough evidence ofundue influence to break a will.2 When undue influence isperpetrated by a family member, there is often a history of

family discord, with the individual responsible for exertingthe influence, feeling “entitled” to the estate for services ren-dered and sacrifices made.

Shulman et al,5 writing about Canadian law, modifiedLord Cockburn’s rules to include the additional require-ment that “the individual’s wishes can be expressed clearlyand consistently.” Depending on the legal philosophy of thepeople applying the law, this interpretation can, at times, becontroversial, especially in the United States, where individ-ual and financial autonomy are highly valued.1,15,27 Shulmanet al saw testamentary consistency as being an importantand crucial way to protect aging individuals from beingtaken advantage of, when they may be more susceptible toundue influence due to environmental factors (eg, need fora caretaker) and/or medical conditions. They recognizedthat an individual may change his or her mind, which iswhy they included the word “clearly” in their criteria. Theywere especially concerned that individuals with dementiacan at times pass the Cockburn criteria even though they donot fully understand the “consequences” of changing theirwills due to their dementia “especially in complex or con-flictual family environments.”5

It is not uncommon for persons who exert undue influ-ence over a testator to try to incorporate professionalssuch as doctors, lawyers, or accountants into their effortsto control the individual.25 Physicians should questionwhether they are being manipulated by caretakers who are

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I Summary of Lord Cockburn’s Rule

Testator understands the nature of the act he is

engaging in (understands what a will is, under-

stands he is making a will)

Testator appreciates the effect of his act

Testator understands the extent of his property

Testator knows his natural heirs

No delusion/mental illness is influencing the pro-

visions of the will

Maryland State Code § 8-801. Exploitationof Vulnerable Adults Prohibited.24(Provides one state’s legal definition for undue influence)

• (i)“Undue influence” means domination and influenceamounting to force and coercion exercised by anotherperson to such an extent that a vulnerable adult wasprevented from exercising free judgment and choice.

• (ii) “Undue influence” does not include the normalinfluence that one member of a family has over anoth-er member of the family.

Testamentary Capacity

Clinical Geriatrics June 2009 21

guilty of exerting undue influence when requests for a com-petency evaluation are initiated. If there is a legal challenge,primary care physicians often will be asked if they witnessedbehavior suggestive of undue influence. For this reason, it isimportant that physicians are familiar with the concept andpotential warning signs that an individual is exerting undueinfluence. Signs of potential elder abuse/undue influencethat a physician may observe include refusal to leave thepatient alone during the evaluation, a history of the individ-ual being isolated by the caretaker, or the caretaker makingrepeated demeaning or derogatory statements toward fami-ly or other potential heirs while exposing his or her ownvirtue25,28 (Table III).

The Medical Professional’s Role WhenWills Are Challenged

Medical professionals, whether primary care providers orspecially retained psychiatrists, are usually brought into willcontests to provide information in one of four ways: (1) todefine the health of the individual at the time the will wasmade; (2) to determine if the will was made voluntarily; (3)to determine if an emotional connection existed betweenthe testator and an individual named in the will; and (4) tocomment on the testator’s level of functioning at the timethe will was made.13 Generally, medical personnel carry themost weight for issues involving illness and its potentialeffect on mental function. In contradistinction, judges andjuries see physicians’ input about emotional connection (eg,good marriage, affinity of a friend, “she seemed to be like adaughter”) as no more or less creditable than a layman’sviews.13 The exception to this is when physicians testify tothe specific question of undue influence based on personalinterview or a detailed review of medical/historical records.

Older persons are at particularly high risk for having theirtestamentary capacity challenged due to the higher frequen-cy of illnesses they may be experiencing at the time a will iswritten. For many reasons, illness can affect cognitive abili-ties, insight, perception, impulse control, susceptibility toinfluence, and both short- and long-term memory.4,6 Forexample, many medical and psychiatric conditions such ascancer, cardiovascular disease, primary endocrine and neu-rological disease, stroke, diabetes, organ failure, dementia,or delirium can adversely impact one’s cognition.2,6,29 Inaddition to these illnesses, individuals may also be takingvarious medications such as muscle relaxants, anticholiner-gics, sedatives/hypnotics, or narcotics, etc, which couldaffect their cognition and, thus, their ability to make awill.30 When medical practitioners are asked to commentabout the health of an individual, the potential side effectsof medication, or a particular patient’s level of functioning,they can either testify as fact witnesses (eg, treating doctor)or as expert witnesses (eg, did not treat the patient but arerecognized by the court as having specialized knowledge—

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II General Warning Signs IndicatingUndue Influence

1. elderly person’s actions inconsistent with

past longstanding values/beliefs.

2. Older person making sudden changes in

financial management that enrich one indi-

vidual.

3. elderly person suddenly changes his/her

will or disposition of assets, belongings, or

property and directs assets toward one

individual, who is not a natural “object of

their bounty.”

4. Caretaker dismisses previous professionals

and directs older person to new ones (eg,

bankers, stockbrokers, attorneys, physicians,

realtors).

5. elderly person isolated from family, friends,

community, and other stable relationships.

6. Nonfamily caretaker moves into the home or

takes control of daily schedule.

7. Older person directs income flow to caretak-

er (eg, Social Security benefits, pensions,

trust distributions).

8. Wills, living wills, or trusts altered with new

caretaker or friend as beneficiary/executor.

9. elderly person develops mistrust of family

members, particularly about financial affairs,

with this view supported by new friend,

acquaintance, or caretaker.

10.Older person finds new caretaker guarantee-

ing lifelong care if he/she gives caretaker

his/her assets.

11.elderly person in relationship characterized

by power imbalance between parties, with

caretaker assuming restrictive control and

dominance.

12.Caretaker or friend accompanies elderly person

to most important transactions, not leaving

him/her alone to speak for himself/herself.

13.elderly person writes checks for cash, in

round numbers or large amounts, or gives

cash gifts to caretaker or caretaker’s family.

14.Older person increasingly helpless, fright-

ened, or despondent, feeling that only the

caretaker can prevent his/her further decline.

15.elderly person sees acquaintance or caretaker

as exalted, with unusual powers or influence.

Reprinted with permission from Hall RCW, Hall RCW,Chapman MJ. Exploitation of the elderly: Undue influence asa form of elder abuse. Clinical Geriatrics 2005;13(2):28-36.

Testamentary Capacity

22 Clinical Geriatrics June 2009

through education, training, and experience—and, thus, areable to assist the trier of fact in reaching a decision).23

Common psychiatric conditions that often become pointsof contention in will contests include a history of alcoholismor other drug abuse, affective disorders (eg, mania), deliri-um, dementia, or psychotic disorders (eg, schizophrenia).6

Alcohol can lead to short-term reasons for not being able towrite a will, such as being in a state of acute intoxicationwhen the will was written or experiencing delirium tremorsor an alcoholic blackout. Long-term memory impairmentand the inability to encode new memory, as occurs withKorsakoff ’s syndrome and other alcohol-related dementias,can also invalidate a will.4,6 Delirium can be a particularlydifficult question to address due to the waxing and waningnature of its presentation. It is possible for an individual tohave capacity at one point in time (eg, lucid interval) andnot have the capacity a short time later.13,15,31 Because of thisfluctuating sensorium, it is beneficial for physicians toinclude a mental status exam in their records, especiallyaround times when individuals are giving consent (eg, con-sent for a procedure or testamentary capacity) (Table IV).The level of functioning of patients with dementia at thetime the will is executed is the critical question that must beaddressed, because such patients may have symptoms relatedto dementia but still have the ability to meet the five criteria(Cockburn’s rules) necessary to execute the will (Table V).32

Depressive and psychotic symptoms also fluctuate over time;therefore, it is critical to assess their severity, if any are pres-ent, at the time the will is executed. Videotaping the mentalstatus and physical examinations preserves a record of thepatient’s state at the time the examination occurred. It pro-vides powerful data to the trier of fact and can be difficult torebut by the opposing side if contrary to their position.

Conducting a Testamentary CapacityAssessment

Although any physician can conduct a capacity assess-ment, testamentary capacity exams (eg, pre- or post-mortem) are generally conducted by psychiatrists due tomost will contests involving questions regarding mentalstate at the time the will was written. In a general sense, theevaluator will look at the three core cognitive domains ofcompetency: (1) comprehension and encoding of informa-tion; (2) information processing; and (3) communication ofdecisions made during an evaluation.5 Besides the generalcompetency scheme, the examiner will likely ask questionsspecifically designed to assess the Cockburn rules and anyspecific jurisdictional statutes relevant to where the exami-nation is taking place.4 It is important for the examiner tohave and review as much information as possible (eg, med-ical records, financial records) prior to the evaluation, toensure that the testator meets the Cockburn criteria, as wellas any other potential state requirements (Table VI).29

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V Components of a General MentalStatus exam

Appearance (eg, how dressed, degree of cleanli-ness, appearing confused or not)

Presence or absence of abnormal movements

Orientation (eg, person, place, time)

Speech (eg, rate, rhythm, volume, tone, clarity)

Speech content (eg, goal-directed, tangential,presence or absence of word-finding difficulties)

Mood (both reported and assessed by examiner)

Affect (eg, mood-congruent, elevated, constricted,blunted)

Suicidal ideation/homicidal ideation/passive deathwish

evidence of hallucinations (eg, auditory, visual,tactile)

evidence of delusions (eg, false, fixed idiosyncraticbeliefs)

Anxiety (eg, presence or absence)

Mini-Mental State examination score (if possible)

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Ways in Which Dementia Can AffectTestamentary Capacity

• executive dysfunction/judgment affects abilityto proportion estate.

• Deficits in working memory affect appreciationof current relationships or assets.

• Impairment in autobiographical memory affectssignificance of long-term relationships.

• Apathy and passivity render people vulnerableto influence.

• Paranoia and suspiciousness lead to changesof heirs based on delusion or erroneous beliefs.

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I Recommended Documentation/Collateral Information for aTestamentary evaluation

• Legal documents (eg, past wills)

• Access to complete financial records

• Knowledge of who the beneficiaries are, familymembers, potential close friends

• Complete medical records

• Neuropsychiatric testing (eg, Mini-MentalState examination, Hamilton Depression Scale,Neurobehavioral Cognitive Status examination)

• Additional interviews (eg, spouse, friends)

Testamentary Capacity

Clinical Geriatrics June 2009 23

Primary care physicians may want to recommend a testa-mentary evaluation to their patients when they are in a stateof poor health, have what is considered to be large and com-plex financial holdings, are members of families with knownstrife, or intend to leave funds in an unexpected manner (eg,to a niece instead of their own children) (Table VII).

In Anglo-American law, it is assumed that one has capac-ity unless the issue is challenged; therefore, it is not requiredfor an individual to have an official assessment before sign-ing a will.15 If an assessment is to be done, it is important tohave it as close in time to the actual signing of the will aspossible (eg, same day). The authors are aware of one attor-ney who prophylactically obtains videotaped testamentarycapacity evaluations by the mental healthcare professionals

of his clients who are at risk of potentially having their willchallenged (Table VIII). Immediately following the evalua-tion (camera still recording), the attorney again reviews thewill with his clients audibly, has them explain the rationalefor their decision-making, and then obtains their signatures.This helps to prevent or diminish the argument that theindividuals had a significant change in their mental abilitiesbetween the examination and the execution of the will.Although not a foolproof way to prevent an individual’s tes-tamentary capacity from being challenged, videotaping theinterview and signing may be a way to reduce the likelihoodthat a challenge will occur and be successful.29 A videotapedinterview ensures that the reasons given for why the will waswritten and distributed in a certain manner are available tofuture judges and juries to hear for themselves, and hopeful-ly provides a clear sense of the individual’s functioning atthe time the will was executed.

There have been cases in which an individual initiallywas found to have testamentary capacity, only to later have

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II Situations in Which a Primary CarePhysician May Suggest That a PatientHave a Testamentary Capacityevaluation before Making or Updating a Will

• Patient is suffering from an acute medical ill-

ness or recovering from an illness.

• Patient has had recent medication changes or

is taking medications that can affect judgment

(eg, narcotics, benzodiazepines).

• There is concern over cognitive function,

whether as a “normal part of aging” or as a

dementing process.

• There is past history of severe malnutrition,

substance or alcohol abuse, and impaired

ability to encode new memory (eg, Korsakoff’s

syndrome).

• Patient has large and complex financial holdings.

• Patient has recently had episodes in which oth-

ers have questioned business decisions or has

recently had poor business outcomes.

• Patient’s family is known to have conflict (eg,

disowned children).

• Patient’s family is complex in terms of structure

(eg, multiple marriages, stepchildren).

• Patient has made statements in the past indi-

cating how property will be distributed, which

no longer reflect his/her wishes or personal phi-

losophy (eg, made promise to “look after” ex-

spouse but no longer feels obligated due to ex-

spouse remarrying).

• Patient plans to leave property in unexpect-

ed or nontraditional manner (eg, leave to a

niece instead of his/her own children, leave

for the upkeep of pets and not give to his/her

children).

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III Questions That Will Likely be Asked

During an evaluation

• Do you understand that the new will makes the

old will invalid?

• What are the differences between the old will

and the new will?

• What is the reason the will is being written or

changed?

• Who did you consider putting in the will or not

including, and why?

• Why divide the estate this way?

• How will people feel or view this division?

• What are the economic implications?

• What are the important relationships in your life

and why?

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X Materials That Are Reviewed in aPostmortem Assessment ofTestamentary Capacity

1. Interviews with persons around individual at the

time the will was made

2. Medical records

3. Past wills

4. Discovery depositions generated during the will

challenge

5. Other documents prepared around the time of

the will (eg, business agreements, prenuptial

agreements)

Testamentary Capacity

24 Clinical Geriatrics June 2009

the will found invalid because the examiner conducting theexamination did not know the extent of the patient’s assetsor who his or her potential heirs were. Without this infor-mation, how can a examiner make an “informed opinion”about the individual’s testamentary capacity?8,29 Althoughone does not need to know the exact value of assets, suchas a house or stock whose value can change, what is expect-ed is that both the evaluator and the evaluee know that thehouse exists and what the approximate value is.8,33

Although assessing an individual’s testamentary capaci-ty while he or she is alive is a good way to diminish thelikelihood of a challenge, most examinations of an indi-vidual’s testamentary capacity occur after the testator hasdied.5 In these circumstances, the examiner usually does apostmortem review of the patient’s records to try to deter-mine the state of mind of the individual at the time thewill was written, not at the time of his or her death (TableIX). Postmortem evaluations are, in general, more diffi-cult since they often take place years after the will waswritten, when less information is available (eg, the indi-vidual who wrote the will is dead, collaborating witnessmay have died or moved), and the information is distort-ed (eg, individuals’ memories are influenced by their rec-ollection of the testator’s mental state at the time of thetestator’s death, not at the time the will was written).29

Summary It is important for physicians, especially those who treat

geriatric patients, to have a basic understanding of thelegal terms and principles involved in making a will. Inparticular, physicians need to understand LordCockburn’s rules for testamentary capacity and their basisin modern law. By understanding the key concepts ofone’s capacity to make a will, physicians will be betterequipped to counsel their patients on such matters, createhigher-quality medical records with a focus on detailedmental status documentation as clinically appropriate,and appreciate how patients’ illnesses such as delirium ordementia may affect their ability to write a will. �

The authors report no relevant financial relationships.

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