Lest We Forget: Assessing Testamentary Capacity

July 15, 2015 Suzana Popovic-Montag Capacity Tags: , , 0 Comments

Testamentary capacity is a legal term that seeks to ascertain whether an individual met the necessary cognitive threshold so as to be capable of making a will. It is not a general medical question of cognitive soundness. Instead, it is limited in scope to the context of this one, very specific task—making a testamentary instrument.

The legal criteria for determining testamentary capacity generally invokes words such as “know”, “understand” or “comprehend.” That is, in assessing testamentary capacity one of the key considerations is often defined by reference to what is inside the testator’s mind. Courts and medical experts have asked such questions as: Did the testator understand the nature of making a will? Was the testator able to comprehend and appreciate the claims to which they ought to give effect? In essence, the focus of testamentary capacity has often been on what was in the mind rather than what was missing from the mind.

While the legal criteria for testamentary capacity remains mostly unchanged, medical understandings of psychopathology and cognition have significantly evolved. Of course, medical questions are different from legal questions, and medical advancements may yet fit within the frameworks of existing legal reasoning. However, courts rely on medical experts to help assess whether or not a person was capable of completing the task of executing a testamentary instrument, and it is incumbent upon the legal community to listen to what medical experts tell us.

One such advancement in understandings of cognition is with regard to memory, particularly within the context of assessing whether a testator could comprehend and appreciate the claims to which they ought to give effect. In her paper, “Reflections on changes in defining testamentary capacity,” published in the International Psychogeriatrics journal, Australian capacity expert, Dr. Carmelle Peisah, says,

“Many of the neuropsychological deficits typically associated with common forms of dementia may influence the appraisal of relationships with intimate and diffuse others…. Deficits in working memory may render a person with dementia unable to appraise their relationships in the context of the past and present simultaneously. This may render them prone to making shallow, superficial and impulsive judgments of people or situations.”

Further, she says, “impairment in autobiographical memory may make it difficult to retrieve meaningful, relationship-focused events and feelings from the past.” In other words, it is important to assess whether the testator could identify, evaluate and discriminate among various people and their potential claims.

As such, when determining whether a person possessed the requisite cognitive capacity to make a will, it seems important to consider not only what the testator knew but to also consider what they may have forgotten. Even if the existing legal framework holds, advances in cognition offer opportunities for greater clarity and precision with regard to assessments of testamentary capacity.

Thank you for reading.

Suzana Popovic-Montag

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