Testamentary Capacity

Under Anglo-American law, the right of testation refers to the freedom to choose how one's property and other possessions will be disposed of following one's death. For a will to be valid, the testator (the person making the will) must have testamentary capacity (TC) at the time that the will is executed. TC is thus a legal construct that represents the level of mental capacity necessary to execute a valid will. If TC is absent, then the will is void and fails. For reasons of public policy, courts have traditionally applied a low legal threshold for finding TC.

Conceptually, TC falls within the broader concept of financial capacity, but for reasons of history and tradition, TC continues to receive distinct attention within the legal system. Each state jurisdiction, through its statutes and case law, sets forth the legal elements or criteria for TC. The absence of one or more of these elements of TC can serve as grounds for a court to invalidate a will. A will can also fail if the testator has an insane delusion that specifically and materially affects the testator's creation or amendment of a will. Finally, a will is often challenged on the conceptually separate [Page 799]ground that it was the product of undue influence on the testator exerted by a family member or a third party.

As TC represents a legal construct closely associated with the testator's mental status, clinicians are often asked to evaluate TC and offer clinical testimony in legal proceedings. Such evaluations are sometimes conducted contemporaneously with a will's execution but more often occur retrospectively following the incapacity or death of a testator and probating of the will. In recent years, there has been an increase in will contests in the probate courts, with associated claims of impaired TC and also undue influence.

There is currently relatively little literature on TC. Several papers addressing the general clinical guidelines for assessing TC and undue influence exist. However, there is a great need for conceptual and empirical work in this area.