Assessing whether a testator had testamentary capacity when executing a will can be difficult. When pertinent medical records are available, they can be an excellent resource but more often than not, we need to look beyond the medical evidence in order to obtain an accurate and complete picture of the testator’s state of mind at the relevant time. One method of accomplishing this is to engage a psychiatrist to conduct a psychological autopsy (also referred to as a retrospective capacity assessment).

The psychological autopsy seeks to reconstruct the mental state of the testator at the time the disputed will was executed. This is done by reviewing the medical records as well as examining evidence such as first-hand accounts given by friends, family, neighbours, and the lawyer who drafted the will. In reviewing the information gathered, the psychiatrist is looking for any evidence of symptoms that may have resulted in a lack of testamentary capacity.

In forming an opinion, the psychiatrist must be careful to look specifically at the elements of testamentary capacity as opposed to capacity in general. This will include a focus on whether the testator understood the nature of the act of making a will and its effects, the extent of the property being disposed of, and the claims of persons who would normally expect to benefit. The presumption of competence must also be considered to be the starting point to any evaluation of testamentary capacity.

Additionally, the psychiatrist should be sensitive to some frequent missteps that can arise during this process. This article in the Psychiatric Times lists some of the most common errors as:

1- Equating unusual bequests with incapacity;

2- Failing to obtain an accurate lists of assets;

3- Reliance on a diagnosis or structural brain changes rather than on functional criteria; and

4- Confusing impairments on standardized tests with failure to meet relevant criteria, and automatically equating delusions with lack of testamentary capacity.

The psychological autopsy began as a useful method to assist in determining a person’s cause of death, specifically in cases where suicide was a possibility. Rather than simply looking at the physical elements that contributed to a person’s death, psychiatrists were invited to consider the psycho-social factors as well. In this way, a global picture of the person’s life emerged that helped tell the complete story rather than narrowly looking at a snapshot in time. The practical application of this method has evolved and has since proven to work equally well in the context of assessing testamentary capacity.

Thank you for reading.

Suzana Popovic-Montag