Laws - Testamentary Capacity
3 important questions on Laws - Testamentary Capacity
Measures for Prospective Testamentary Capacity / Contemporaneous
§ Pre-mortem @ living probate (when testator is available for examination)
§ Need consent beforehand
§ Useful to videotape
§ Carry out thorough MSE +/- neuropsychological testing
§ Consider medical problems
§ Presence of mental disorders do not automatically make a person incapable of making a will, unless it has a distinct bearing on the capacity to make a will (eg deluded against a family member, causing the person to be excluded from the will).
§ Need consent beforehand
§ Useful to videotape
§ Carry out thorough MSE +/- neuropsychological testing
§ Consider medical problems
§ Presence of mental disorders do not automatically make a person incapable of making a will, unless it has a distinct bearing on the capacity to make a will (eg deluded against a family member, causing the person to be excluded from the will).
Clues suggestive of undue influence (Richmond)
· Person requesting assured psychiatrist that testamentary assessment is a routine due to testator’s age.
· Appointment made by someone other than testator attorney.
· Testator was not allowed to be interviewed alone or restrict testator answer.
· Specific about will not given, testator unclear about items in the will.
· Reluctant to give information about potential heirs relationship with testator.
· Appointment made by someone other than testator attorney.
· Testator was not allowed to be interviewed alone or restrict testator answer.
· Specific about will not given, testator unclear about items in the will.
· Reluctant to give information about potential heirs relationship with testator.
Common Psychiatric condition affecting capacity and undue influence
1. Dementia
2. Alcoholism
3. Mood disorder
4. Psychotic disorder (delusion)
2. Alcoholism
3. Mood disorder
4. Psychotic disorder (delusion)
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