The assessment of testamentary capacity and undue influence in the older adult.

2018 ◽  
pp. 213-234 ◽  
Author(s):  
Nancy Hoffman
Keyword(s):  
Older Adult ◽  
Undue Influence ◽  
Testamentary Capacity

Capacity in the Life Course of the Elder

2017 ◽  
Author(s):  
Yaser Haq ◽  
Stuart A. Anfang ◽  
Benjamin Liptzin
Keyword(s):  
Elderly Population ◽  
Power Of Attorney ◽  
Complex Interplay ◽  
Undue Influence ◽  
Estate Planning ◽  
Retrospective Assessment ◽  
Testamentary Capacity ◽  
Low Threshold ◽  
The Life Course ◽  
Psychiatric Issues

Over the next few decades, there will likely be an increase in the frequency of will challenges related to testamentary capacity and undue influence, given a U.S. elderly population with a disproportionate amount of wealth. Psychiatric clinicians are likely to be called upon to advise the courts about a person’s capacity to make a will or susceptibility to undue influence. This chapter reviews the important legal and psychiatric issues involved in determinations of testamentary capacity and undue influence. It also touches on the policy considerations of promoting liberty and autonomy which set a low threshold for testamentary capacity while allowing for the doctrine of undue influence as a mechanism to protect those who are vulnerable. The complex interplay between cognition, a potentially conflictual milieu, and the extent of the assets at stake is also discussed. This chapter also provides guidance with respect to some of the challenges faced by clinicians conducting a contemporaneous versus retrospective assessment. Finally, mechanisms to avoid estate litigation, such as power of attorney and estate planning, are also discussed.

Testamentary capacity and delirium

2010 ◽  
Vol 22 (6) ◽  
pp. 950-956 ◽  
Author(s):  
Benjamin Liptzin ◽  
Carmelle Peisah ◽  
Kenneth Shulman ◽  
Sanford Finkel
Keyword(s):  
Mental Status ◽  
Task Force ◽  
Undue Influence ◽  
Case Examples ◽  
Testamentary Capacity ◽  
Over Time

ABSTRACTBackground: With the aging of the population there will be a substantial transfer of wealth in the next 25 years. The presence of delirium can complicate the evaluation of an older person's testamentary capacity and susceptibility to undue influence but has not been well examined in the existing literature.Methods: A subcommittee of the IPA Task Force on Testamentary Capacity and Undue Influence undertook to review how to assess prospectively and retrospectively testamentary capacity and susceptibility to undue influence in patients with delirium.Results: The subcommittee identified questions that should be asked in cases where someone changes their will or estate plan towards the end of their life in the presence of delirium. These questions include: was there consistency in the patient's wishes over time? Were these wishes expressed during a “lucid interval” when the person was less confused? Were the patient's wishes clearly expressed in response to open-ended questions? Is there clear documentation of the patient's mental status at the time of the discussion?Conclusions: This review with some case examples provides guidance on how to consider the question of testamentary capacity or susceptibility to undue influence in someone undergoing an episode of delirium.

Geriatric Forensic Report Writing

2017 ◽  
Author(s):  
Sherif Soliman ◽  
Phillip J. Resnick
Keyword(s):  
The Elderly ◽  
Decision Makers ◽  
Undue Influence ◽  
Geriatric Population ◽  
Basic Principles ◽  
Report Writing ◽  
Testamentary Capacity ◽  
Psychiatric Expertise ◽  
Forensic Psychiatric ◽  
Psychiatric Issues

As the population ages, expertise in addressing forensic psychiatric issues that arise in the geriatric population is becoming increasingly important. These include the need for guardianship, contractual capacity, testamentary capacity (capacity to make a will), and undue influence. Legal decision-makers frequently rely on psychiatric expertise. The geriatric-forensic psychiatric report is a key part of communication between the medical and legal professions. Often the report is the doctor’s only opportunity to communicate his or her opinion, since the vast majority of cases do not go to trial. This chapter focuses on planning, writing, and editing forensic psychiatric reports regarding geriatric issues. Basic principles of writing for a legal audience are discussed and how these principles apply to forensic psychiatric reports involving the elderly. The chapter offers recommendations for each stage of the writing process and discusses common pitfalls in writing forensic reports.

scholarly journals Susceptibility to Undue Influence: The Role of the Medical Expert in Estate Litigation: Susceptibilité à une Influence Indue : Le Rôle de L’expert Médical Dans un Litige Successoral

2021 ◽  
pp. 070674372110206
Author(s):  
Nathan Herrmann ◽  
Kimberly A. Whaley ◽  
Deidre J. Herbert ◽  
Kenneth I. Shulman
Keyword(s):  
Medical Literature ◽  
Psychiatric Symptoms ◽  
Relevant Information ◽  
Historical Background ◽  
Medical Documentation ◽  
Medical Expert ◽  
Undue Influence ◽  
Legal Perspective ◽  
Testamentary Capacity

Objectives: Medical experts are increasingly asked to assist the courts with Will challenges based on the determination of testamentary capacity and potential undue influence. Unlike testamentary capacity, the determination of undue influence has been relatively neglected in the medical literature. We aim to improve the understanding of the medical expert role in providing the courts with an opinion on susceptibility to undue influence in estate litigation. Method: Medical experts with experience in the assessment of testamentary capacity and susceptibility to undue influence collaborated with experienced estate litigators. The medical literature on undue influence was reviewed and integrated. The lawyers provided a historical background and a legal perspective on undue influence in estate litigation and the medical experts provided a clinical perspective on the determination of susceptibility to undue influence. Together, they provided recommendations for how the medical expert could best assist the court. Results: Susceptibility to undue influence is frequently used in estate litigation to challenge the validity of Wills and is defined as subversion of the testator’s free will by an influencer, resulting in changes to the distribution of the estate. While a determination of undue influence includes the documentation of indicia or suspicious circumstances under which the Will was drafted and executed, medical experts should focus primarily on the susceptibility of the testator to undue influence. This susceptibility should be based on a consideration of cognitive function, psychiatric symptoms, physical and behavioural function, with evidence derived from the medical documentation, the medical examination, and the history. Conclusions: The determination of undue influence is a legal one, but medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the testator’s susceptibility to undue influence.

scholarly journals Forensic psychiatry determination of mental capacity

2011 ◽  
Vol 139 (7-8) ◽  
pp. 548-554
Author(s):  
Aleksandar Jovanovic ◽  
Srdjan Milovanovic ◽  
Miroslava Jasovic-Gasic
Keyword(s):  
Informed Consent ◽  
Forensic Psychiatry ◽  
Medical Data ◽  
Mental Capacity ◽  
Social Significance ◽  
Undue Influence ◽  
Basic Principles ◽  
Legal Implications ◽  
Testamentary Capacity

Forensic psychiatry determination is, ordered by a court, the analysis and interpretation of medical facts with important legal implications. In that sense, psychiatrists (or neuropsychiatrists), apart from their professional expertise, must be familiar with legal, economical and social significance of medical data, so that their forensic reports are clear and useful in the context of legal procedure. This review deals with forensic psychiatry aspects of mental capacity. In the introduction of the article, the explanation of relevant concepts such as mental capacity, contractual and testamentary capacity, informed consent, undue influence and forensic determination in light of Serbian statutory law is presented. Further, the authors present basic principles of making forensic reports on mental capacity as well as contractual and testamentary capacity, and informed consent for eventual medical examination and treatment.

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