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Centre for Policy on Ageing | |
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| Psychiatric issues in retrospective challenges of testamentary capacity | | Author(s) | Kenneth I Shulman, Carole Cohen, Ian Hull |
| Journal title | International Journal of Geriatric Psychiatry, vol 20, no 1, January 2005 |
| Pages | pp 63-69 |
| Source | http://www.interscience.wiley.com |
| Keywords | Mental disorder ; Assessment procedures for mental patients ; Wills ; Law ; Literature reviews. |
| Annotation | Challenges to Wills on the basis of lack of testamentary capacity are likely to increase due to a combination of economic factors, high prevalence of mental disorders in old age, and the complexity of many modern families. Geriatric psychiatrists and other experts will be asked to provide expert assessment of the testamentary capacity of individuals whose wills are being challenged retrospectively. The traditional criteria described in Banks vs Goodfellow (1870 LR5 QB 549) have been held as the standard of testamentary capacity. However, these criteria may not be comprehensive enough for the coming generation of expert assessors. This paper reviews the relevant legal literature, including Banks vs Goodfellow, as well as neuropsychological literature on the capacity construct. It also reports on an analysis of 25 medico-legal reports on retrospective challenges to testamentary capacity to highlight common findings. The typical profile included a radical change from a previous will (72%), where undue influence was alleged (56%), in a testator with no biological children (52%), who executed the will less than a year prior to death (48%). Comorbid conditions were dementia (40%), alcohol abuse (25%) and other neurological or psychiatric conditions (29%). While Banks vs Goodfellow continue to provide a sound basis for assessing testamentary (task-specific) capacity, the complexity and subtlety of the issues reflected in these cases highlight the need to go beyond the traditional criteria and assess situation-specific factors. Expert assessors need to determine whether the testator appreciated the consequences of executing or changing a will, especially where there had been a radical change in 6he context of a complex or conflictual family environment. Empirical studies addressing the cognitive functions relevant to testamentary capacity and the development of legal standards based on a competency construct may also help to inform retrospective capacity assessments. (RH). |
| Accession Number | CPA-050127214 A |
| Classmark | E: DA:4C: VTH: VR: 64A |
Data © Centre for Policy on Ageing |
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| ...from the Ageinfo database published by Centre for Policy on Ageing. |
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