TESTAMENTARY CAPACITY
photo by Joyce Romero
There is a purposely low bar set for testamentary capacity…
The law is clear that, barring severe impairment, individuals have the right to do whatever they want with their estates upon their death (as long as their wishes are not illegal). Presuming they are competent and staying within the bounds of the law, people are allowed to make whatever decisions they want about their property distribution. They can make kind and generous decisions, and they can make terrible, mean-spirited decisions. As long as they are competent, adults should be given the autonomy to decide what happens to their estate after they die.
The goal of a testamentary capacity evaluation is to make sure the testator (the person making changes to their will, trust, or estate plan) is or was able to do so competently. These evaluations can be conducted while the testator is still alive to determine their current level of competency. Or, evaluations can be conducted retrospectively to determine the mental state of a deceased testator around the time they executed their estate plan.
In order to conduct a testamentary capacity evaluation, I rely on all available evidence to form an expert opinion regarding whether or not an individual is of sound mind. Typically, to be of sound mind, adults must know the following pieces of information:
Do they understand they are making a will, trust, and/or estate plan?
Do they know the extent of their assets and property?
Do they understand how their assets and property will be distributed after they die?
Do they know who the individuals are who would normally inherit their estate (i.e. their family members or natural heirs)?
Do they recognize that their estate plan represents their true wishes?
Part of being of sound mind also includes an evaluation of whether or not testators made changes to their estate plan based on a delusion that negatively impacted the proposed testamentary distribution. For the purposes of testamentary capacity, a delusion is typically defined as a belief in the existence or non-existence of a fact that has no basis in reality and which is adhered to against all available evidence; for example, writing a child out of the will because the father is convinced that child is not his, despite him being present at the birth of the child, raising the child for 18 years, and DNA evidence proving the familial relationship.
It is important to note that most states make it clear that testamentary capacity is a significantly lower level of capacity than what is needed to avoid being deemed an incapacitated person in need of a Guardian or a protected person in need of a Conservator. So, even if a court has ruled that individuals have an inability to receive or evaluate information or to make or communicate decisions to such an extent that they can’t manage finances or care for themselves safely, that does not necessarily mean those individuals do not have the capacity to make competent, autonomous changes to their estate plans.
In addition to the above information, I also use guidance from a 2008 handbook co-published by the American Bar Association and American Psychological Association as a guide for my testamentary capacity evaluations.[1] In this handbook, the authors write, “For reasons of public policy supporting the orderly processing of wills and distribution of assets to heirs, courts have traditionally applied a low legal threshold for finding testamentary capacity,” (p. 81).
The authors also highlight the following cognitive functions necessary for various aspects of testamentary capacity, which are as follows:
1. Understanding the Nature of a Will
a. “Semantic memory[2] regarding terms such as death, property, and inheritance;
b. “Verbal abstraction and comprehension; and
c. “Sufficient language abilities to express the testator’s understanding,” (p. 82).
2. Knowing the Nature and Extent of Property
a. “Semantic memory concerning assets and ownership;
b. “Historical memory and short-term memory enabling recall of long-term and more recently acquired assets and property; and
c. “Comprehension of the value attached to different assets and property.
d. “If the testator has recently purchased new possessions prior to his or her execution of a will, then impairment in short-term memory (the hallmark of Alzheimer’s disease) can significantly impact his or her recall of these items,” (p. 82).
e. Executive functioning skills[3] in order to reasonably approximate values of property.
3. Knowing the Objects of One’s Bounty
a. “Autobiographical memory would appear to be a prominent cognitive ability associated with this element,” (p. 82).
4. Plan for Distribution of Assets
a. This requires “an integration of the cognitive abilities underlying the other three items,” (pp. 82-83).
b. Executive functioning abilities.
Further, researchers Fayez Roked and Abdul Patel examined the cognitive dysfunctions most likely to predict testamentary incapacity in a sample of 80 hospital patients with Alzheimer’s disease.[4] Research participants were given several cognitive measures and were tested for testamentary capacity by two different raters. In their writing, they abbreviated Testamentary Capacity as TC and Alzheimer’s disease as AD. Their research concluded, “Of the subjects who had TC, the majority had mild rather than moderate or severe AD,” (p. 553). They further found, “Of the domains of cognitive function, language testing alone predicts TC as accurately as either MMSE or CAMDEX-R. Surprisingly, impaired short-term memory and poor concentration were not accurate predictors of TC,” (p. 553). They suggested that evaluating the individual’s language abilities was the best way to determine if that individual has testamentary capacity and focusing on poor short-term memory will give an evaluator the inaccurate notion that incapacity may be present.
As such, I utilize the above information to inform my expert opinion regarding an individual’s testamentary capacity.
A standard retrospective testamentary capacity evaluation is comprised of the following steps:
Reviewing all court filings, pleadings, motions, and orders to date to get a sense of the context of the case;
Reviewing the most recent estate plan and determining what (if any) differences there are compared to previous estate plans;
Identifying key dates to home in on exactly when the individual needed to have capacity (e.g. the mother worked with her attorney from June through August of 2018 on the new estate plan and signed the documents on August 21, 2018);
Reviewing as many medical records as possible to determine if there are mental health, physical health, or cognitive issues like dementia that might have impaired the individual’s capacity on key dates;
Speaking with collateral sources such as family members, friends/neighbors, doctors, and caretakers;
Reviewing depositions (if available);
Reviewing communications from the individual during key periods (e.g. emails, voicemails, and letters); and
Reviewing any video of the individual during key periods (if available).
[1] American Bar Association/American Psychological Association (2008). Assessment of Older Adults With Diminished Capacity: A Handbook for Psychologists.
[2] The APA Dictionary of Psychology, Second Edition (2015) defines semantic memory as “Memory for general factual knowledge and concepts, of the kind that endows information with meaning and ultimately allows people to engage in such complex cognitive processes as recognizing objects and using language.”
[3] The APA Dictionary of Psychology, Second Edition (2015) defines executive functions as the “higher level cognitive processes of planning, decision making, problem solving, action sequencing, task assignment and organization, effortful and persistent goal pursuit, inhibition of competing impulses, flexibility in goal selection, and goal-conflict resolution.”
[4] Roked, F., & Patel, A. (2008). Which Aspects of Cognitive Function Are Best Associated with Testamentary Capacity in patients with Alzheimer’s Disease? International Journal of Geriatric Psychology, 23.