A Comprehensive Approach to Assessment of Testamentary Capacity

The growing aging population raises important implications for legal and clinical systems, including testamentary capacity (TC) assessment. Yet, there are limited comprehensive and standardized assessment measures for TC readily available for clinical use. A review of current assessment methods and standardized approaches for TC assessment is provided. Although several guidelines regarding TC assessment have been proposed in prior literature, existing standardized approaches do not appear to meet full criteria for TC. A comprehensive approach to assessment of testamentary capacity is proposed.

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

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.

WILL EXECUTION DURING COVID-19: LEGAL CHALLENGES IN MALAYSIA

The Coronavirus disease (COVID-19) pandemic has posed several challenges to almost every aspect of our lives including the Wills writing industry. Due to this unprecedented phenomenon, over the past few months, processes, laws, and timelines have all been pushed to their limits. There are considerable practical and legal challenges to consider when making a will while social distancing, isolation, or quarantine measures are in place. This article aims to discuss the formalities that need to be complied with in executing a will and challenges in the Malaysian legal context in an era in which social distancing is the new normal. As Malaysian Law operated on parallel legal jurisdiction, this article limits the scope of discussion to the civil legal position impose on the non-Muslim in Malaysia by referring to Wills Act 1959 only. For this purpose, the discussion adopts the doctrinal analysis by examining the existing primary and secondary materials including statutory provisions, case law, and other legal and non-legal literature related to the will execution under civil law applicable to non-Muslim. This article concludes that restrictions on human interaction are challenging for assessing testamentary capacity and witnessing requirements as both of which are required to ensure the validity of Wills. For the time being, it appears that Malaysian law still insists to follow the strict conventional way of wills execution. The legislature should relax some strict requirement in the Wills Act 1959 during the COVID-19 outbreak or similarly exigent circumstances with several safeguards to ensure the validity of the Wills. A technological tool such as electronic signature, remote execution and digital will also good to be considered as an alternative solution in making a valid Will during pandemics.

The Role of the Medical Expert in the Retrospective Assessment of Testamentary Capacity

Objectives: Physicians and other mental health experts are increasingly called on to assist the courts with the determination of testamentary capacity. We aim to improve the understanding of the retrospective assessment of testamentary capacity for medical experts in order to provide more useful reports for the court’s determinations and to provide a methodology for the retrospective assessment of testamentary capacity. Method: Medical experts with experience in the retrospective assessment of testamentary capacity collaborated with lawyers who practice estate litigation. The medical literature on the assessment of testamentary capacity was reviewed and integrated. The medical experts provided a clinical perspective, while the lawyers ensured that the case law and legal perspective were integrated into this review. Results: The focus and limitations of the medical expert are outlined including the need to be objective, nonpartisan, and fair. For the benefit of the court, the medical expert should describe the nature and severity of relevant medical, psychiatric, and cognitive disorders, and how they may impact on the specific criteria for testamentary capacity as defined by the leading case of Banks v Goodfellow. Medical experts should opine only on the issue of vulnerability to influence and defer to the court to determine the facts of the case regarding any influence that may have been exerted. Conclusions: Although the ultimate determination of testamentary capacity is a legal one, medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the criteria for testamentary capacity.

Directions of Updating the Inheritance Legislation of Ukraine

The paper investigates the issues of updating the inheritance legislation. The purpose of this paper is to substantiate the first steps towards the creation of a scientific concept for the reform of inheritance law. The need to improve inheritance legislation is conditioned by a number of circumstances: new developments in the doctrine of inheritance law; law enforcement practices and problems that arise in courts upon considering hereditary disputes; the need to adapt domestic legislation to that of EU countries; consideration of Ukraine's aspirations for the European community. The dominant research methods are the comparative method and the modeling method, the use of which allowed to carry out comparative law analysis of the hereditary legislation of foreign countries and Ukraine and to identify the tendencies of development of the inheritance law, to understand the methods of overcoming the arising issues. Features of testamentary capacity of minors are revealed. An opinion was expressed that the legal regulation of relations involving post-mortem children and children born with the help of reproductive technologies may go beyond hereditary. Given the historical experience, the place of inheritance law in the civil law system was determined. The conclusion on the necessity of extending the freedom of testation by introducing simplified forms of it is justified: legalization of a simple written form of thetestament, and in extraordinary circumstances – the admissibility of announcement of the testamentary disposition in oral form. The legal nature of the secret covenant was identified; the norm of the testament with condition was modelled. Supplementary ways of protecting the rights of the testator are proposed, including appeal to the court for the removal of a person entitled to a compulsory share of inheritance from succession. The provision that the grounds for reducing the size of the obligatory share of the heir should be specified in the law is substantiated. Adoption of proposals aimed at improving legislation will facilitate the implementation and protection of inheritance rights. The overall result of the study lies in the need to recodify the inheritance legislation of Ukraine with consideration of the positive experience of continental Europe.