Testamentary Capacity & Undue Influence
The landmark case governing testamentary capacity evaluations is Banks v. Goodfellow (1870) which initially outlined the criteria for capacity. Many components of this landmark case are now encapsulated in Probate Code 810-812 (the higher standard) and Probate Code 6100.5 (the lower standard) which govern capacity determinations in California. Often, the trier of fact will make a legal determination, based upon the complexity of the testamentary act in question, of which legal standard will be utilized. Thus, a forensic psychologist must be fluent in both legal standards, and at times provide two distinct opinions in relation to the two distinct legal standards.
Probate Code 811 clarifies that a diagnosis is insufficient for a finding of incapacity and that impairments are only relevant to the extent that they impair the decedent’s understanding of the consequences of the testamentary act. Thus, while a diagnostic evaluation is an important component of a capacity evaluation, the forensic psychologist must focus primarily on the defendant’s capacity to perform the specific abilities outlined in Probate Code 812 and 6100.5 including, but not limited to, understanding the nature of the testamentary act, understanding the nature of one’s property, understanding the rights and duties affect by or created by the testamentary decision, and understanding the probable consequences for the decision maker and persons affected by the decision. Mental illness, in and of itself, does not render a testator incapacitated. Nevertheless, pursuant to probate code 61005, a testamentary decision which is the product of delusions or hallucinations may invalidate a will.
Dr. Ernst’s testamentary capacity evaluations typically included a detailed clinical interview and psychological testing (presuming the testator is alive), collateral interviews with individuals who can provide relevant data regarding the testator, a review of medical records, and an analysis of the relationship between the testator’s abilities and the complexity of the testamentary act in questions. Dr. Ernst has a particular interest in performing retrospective testamentary capacity evaluations, in cases involving a decedent.
The central component of undue influence is the overcoming of the testator’s will by the influencer. It is not enough for the influencer to advocate for a certain testamentary decision for undue influence to have occurred. Alternatively, the influencer’s actions must usurp the will of the testator. Welfare and Institutions Code 15610.70 governs an analysis of undue influence in California and guides the forensic psychologist to consider the vulnerability of the testator, the influencer’s apparent authority, actions and tactics used by the influencer and the equity of the results. Psychological factors that may cause vulnerability to undue influence include organic or neurological conditions, severe mental illness, situational factors such as bereavement or isolation, and dependent personality features. In the case of a decedent, a careful analysis of relationship patterns between the testator and alleged influencer often requires detailed interviews with individuals whom the testator interacted with, given that this relational information may not be clearly detailed in medical records.
For more information regarding the psychological assessment of testamentary capacity and undue influence, please review the below article by Dr. Ernst:
The Psychological Assessment of Testamentary Capacity, Contractual Capacity, Undue Influence, and the Capacity to Make Medical Decisions
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