Responding to the Growing Need for Medical Experts in Testamentary and Estate Related Capacities: A Course for Physicians.

OBJECTIVES: The objective of this continuing medical education course was to improve the knowledge and skills of physicians in the assessment of testamentary and related capacities. METHODS: We developed, conducted, and evaluated an accredited medical education course focusing on the role and responsibilities of medical experts in estate litigation and held in Toronto, Ontario, Canada in June 2022. RESULTS: Participants reported a 65% and 35% improvement in confidence in conducting retrospective and contemporaneous assessments of testamentary capacity, respectively. The overall mean score in the 9 key competencies for medical experts in estate litigation improved by 1.2-points from 3.02 (SD 1.33) to 4.22 (SD 0.74) from pre to postcourse (p <0.05, 95% CI [-1.66, -0.67]). CONCLUSIONS: This course addresses a significant gap in training and formal education opportunities in testamentary and other related capacities that may contribute to increasing the pool of available and qualified medical experts in estate litigation.

Public awareness of legal decision-making capacity and planning instruments in dementia: implications for health care practitioners.

The protection of a person facing difficulties with legal decision-making can be challenging; however, estate planning documents (EPDs) can offer safeguards. Little is known about the community awareness of EPDs and their perceived importance, including for people with dementia. Two-hundred and thirty adults read a mild dementia vignette, proposed a diagnosis for the vignette character (VC), and rated the VC's legal decision-making capacity (DMC). The effect on ratings about DMC under different conditions was explored (e.g., variation of VC characteristics and the decision). Awareness, and the personal importance, of EPDs were assessed. DMC was affected by the variations in the VC's age, diagnosis, and the decision, as high- or low-stakes, but not VC sex. Awareness of EPDs was low; however, planning importance was increased for dementia. Although the public understand that dementia affects DMC, they require further information about EPDs to validly enact them, thereby reducing potential vulnerability.

The Testamentary Capacity Assessment Tool (TCAT): validation and normative data.

BACKGROUND: There is an increasing need for objective and standardized assessment of testamentary capacity (TC) in dementia. A new instrument, the Testamentary Capacity Assessment Tool (TCAT), has been recently developed; however, the lack of validation and normative data regarding this cognitive screening test has limited its adoption in forensic and clinical settings. The present study collects normative data for the TCAT and assesses its convergent validity with standardized cognitive tests and the capacity to define what a 'testament' is. METHODS: The study involved 323 neurologically healthy adults (123 males, 200 females) of different ages (31-93 years) and different educational levels (4-25 years). The TCAT was administered along with the Beck Depression Inventory-II (BDI-II), the Montreal Cognitive Assessment (MoCA), the Mini-Mental State Examination (MMSE), the Frontal Assessment Battery (FAB) and the Testament Definition Scale (TDS). RESULTS: Multiple regression analyses revealed a significant effect for gender, age and education on TCAT scores. Correlation analyses showed significant associations between the TCAT and the MMSE, MoCA, FAB and BDI-II. A positive correlation between the TCAT and TDS was also found, proving good convergent validity of the TCAT with respect to TC. Finally, cut-off scores and Equivalent Scores (ES) were computed. DISCUSSION: The present study provides normative data for using the TCAT as an adjuvant cognitive screening test in the neuropsychological evaluation of TC. Our findings shall be of interest for the adoption of the TCAT also in clinical practice, since it evaluates cognitive functions (e.g., autobiographic memory, Theory of Mind) not measured by traditional screening tests.

Susceptibility to Undue Influence: The Role of the Medical Expert in Estate Litigation.

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.

Advancement in the medicolegal requirement for testamentary capacity assessment in older adults: the dilemmas in Hong Kong.

Medical and legal professionals are increasingly involved in probate disputes in which the validity of a will due to a lack of testamentary capacity in older adults is frequently challenged. The legal test for testamentary capacity under common-law jurisdiction was established in the famous case of Banks v Goodfellow (1870). The High Court of Hong Kong recently issued new practice guidance for legal professionals on the preparation of a will for older adults. This paper discusses the dilemmas and competing issues among different parties on this medicolegal interface based on recent literature and local examples. We recommend a risk-based pragmatic framework for legal and medical professionals to minimise potential disputes in testamentary capacity assessment.

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.

The marriage of psychology and law: testamentary capacity.

Banks v. Goodfellow [1870. LR 5 QB 549 (Eng.)] is almost 150 years old, yet still stands as authority for the principle that unsoundness of the mind will not rebut testamentary capacity where it does not affect the will itself. Readers of this journal would know that psychology has advanced greatly during this sesquicentenary, and yet the law relating to testamentary capacity has remained relatively stagnant. We review the present laws relating to decision-making for adults with impaired capacity, particularly in Queensland, and also review various models of gauging decision-making capacity in other jurisdictions. We argue that qualified experts should be enlisted to make determinations about testamentary capacity when questions of capacity arise. We also argue the case for the development of scientifically validated protocols to assess decision-making capacity in the testamentary context.

Testamentary Capacity Assessment: Legal, Medical, and Neuropsychological Issues.

INTRODUCTION: The increase in the aging population and the number of patients with dementia led to the research in older adults' capacity assessment over the last 3 decades. Many cases of contested wills occur due to lack of testamentary capacity (TC), especially in cases of dementia. AIM: Purpose of the present study was to overview the legal, medical, and neuropsychological aspects of TC as well as the instruments used for TC assessment. FINDINGS: The testator/testatrix with intact TC has realistic perception of his or her property value, lack of psychopathology affecting contact with reality, and intact intention of how and to whom he or she will dispose his or her assets. It is frequent for the health practitioners to serve as "gold standards assessors" by examining an individual's ability to make a valid will and giving evidence to the court to support or not a will contest. The TC assessment is a complex process of clinical and legal practice requiring usually a variety of methods, that is, interviews, evaluation of clinical records, and administration of neuropsychological instruments. CONCLUSION: The evaluation of TC is a multidimensional process that integrates both the legal and medical field, requiring a collaborative approach to its definition and assessment.

Medical Evidence of Capacity in a Legal Setting: To What Extent Do Courts and Tribunals Make Their Own Decisions?

The extent to which legal determinations of capacity are genuinely separate from medical opinion on capacity presented to the court as evidence, is an open and important question. In order to explore this question, an empirical study was done on the use of medical and non-medical evidence to establish capacity in three different capacity contexts: personal/financial capacity, testamentary capacity and legal matters capacity. The study showed that the use of medical evidence to establish capacity was by far the heaviest in personal/financial capacity matters, often to the point of effective exclusion of other forms of evidence. Concerns with the weight given to medical evidence in personal/financial capacity matters were identified. The concerns have implications for the specific jurisdiction considered, and for the wider question of how capacity is and should be determined in a legal setting.

The testamentary capacity in acute stroke. A cross-sectional study.

Succession law, which governs the creation and validity of wills, is closely tied to testamentary capacity (TC), the cognitive competence required for a valid will. This study explores TC in acute stroke patients and its connections to demographic and clinical characteristics. The research included first-time stroke patients admitted within 24 hours of symptom onset, meeting specific criteria. Data were collected, and assessment tools like the Addenbrooke's Cognitive Examination III (ACE-III) and Testamentary Capacity Assessment Tool (TCAT) were used. The study found that TCAT scores were not significantly affected by age or gender but positively correlated with education, the Barthel Index and ACE-III scores. They were negatively associated with National Institutes of Health Stroke Scale (NIHSS) and Modified Rankin Scale (mRS) scores. Specific cognitive domains, particularly memory and attention, were independent determinants of TCAT scores. This research introduces TCAT as a valuable tool for evaluating testamentary capacity in stroke patients and highlights the multifaceted nature of TC, emphasizing the need for a nuanced approach. As the population ages and complex medical conditions become more prevalent, understanding the interplay between cognitive functioning and testamentary capacity becomes increasingly crucial for both legal and medical professionals.

'Evaluation of testamentary capacity: A systematic review'.

OBJECTIVE: To systematically review the literature on methods for the standardized and objective assessment of Testamentary Capacity (TC), to identify the best evidence-based and clinically pragmatic method to assess TC. Doubts concerning TC can have far-reaching legal and financial implications. METHOD: A systematic search of the literature was conducted, using PRISMA guidelines, to identify studies which describe methods or tools for the assessment of TC. RESULTS: The Testamentary Definition Scale (TDS); the Testamentary Capacity Assessment Tool (TCAT); and the Testamentary Capacity Instrument (TCI) all have good psychometric properties, but TDS only partially assesses TC, and the TCI is designed for research rather than day-to-day clinical practice. CONCLUSION: The TCAT could usefully supplement the clinical assessment of TC, coupled with a standardized examination of cognition. There is room to develop an all-encompassing TC assessment tool. Currently, the clinical judgement of a medical professional, taking account of the medical, legal, ethical issues informing a capacity or competency decision, remains the gold standard for assessing TC.

Testamentary capacity assessment in dementia using artificial intelligence: prospects and challenges.

Testamentary capacity (TC), a set of capacities involved in making a valid Will, has become prominent in capacity evaluations due to the demographic increase in older persons and associated increase in cognitive impairment. The assessment of contemporaneous TC follows the criteria derived from the Banks v Goodfellow case, which do not bind capacity solely on the basis of presence of a cognitive disorder. Although effort is being made for establishing more objective criteria for TC judgment, variations in situational complexity call for incorporating the different circumstances of the testator in capacity assessment. Artificial intelligence (AI) technologies such as statistical machine learning have been used in forensic psychiatry mainly for the prediction of aggressive behavior and recidivism but little has been done in the area of capacity assessment. However, the statistical machine learning model responses are difficult to interpret and explain, which presents problems with regard to the new General Data Protection Regulation (GDPR) of the European Union. In this Perspective we present a framework for an AI decision support tool for TC assessment. The framework is based on AI decision support and explainable AI (XAI) technology.

Neuropsychological autopsy of testamentary capacity: Methodology and issues in the elderly.

The forensic assessment of testamentary capacity is a topical issue given the prevalence of dementia illnesses and the increase in the complexity of modern financial and family structures. Although a contemporaneous assessment would be desirable, the majority of situations require a retrospective assessment of the mental state a deceased individual. Neuropsychologists, independently or as part of a board of consultants, are, therefore, frequently requested to give an expert opinion of the competence of cognitively impaired elderly testators.This paper offers a guide for carrying out a neuropsychological autopsy, namely the process of posthumous evaluation, for determining testamentary capacity. Taking into account the recent literature on the assessment of testamentary capacity, we propose a three-phase procedure for carrying out the neuropsychological autopsy in the forensic context. The neuropsychological autopsy of testamentary capacity is based on the meticulous, chronologically structured evaluation of any medical documents, available psychometric data, along with the critical examination of any source of information about the cognitive level of functioning of the deceased person at the time of the will.

Assessment of Testamentary Capacity in Older Adults: Description and Initial Validation of a Standardized Interview Instrument.

OBJECTIVE: Testamentary capacity (TC) is a legal construct, which concerns a person's mental capacity to make or amend a will. Although expert clinicians are frequently asked to assess TC in forensic settings, there are few instruments and little empirical research to inform and guide their assessments. The present study describes the development and psychometric properties of a standardized assessment measure of TC (Testamentary Capacity Instrument-TCI), and investigates its reliability and validity. METHODS: The TCI is an interview-based, psychometric measure, which assesses a testator's knowledge of four conceptual elements, which together comprise the legal basis for TC in the Anglo-American legal system: (1) what a will is, (2) nature and extent of assets/property, (3) possible heirs/claimants to property, and (4) plan to distribute assets to heirs after death. Cronbach's alpha and percentage exact agreement were used to examine TCI element reliabilities. Using independent samples t-tests, MANOVA and MANCOVA, we investigated validity by comparing TCI element performance of cognitively intact older adults (n = 22) and older adults with ad dementia (n = 20). RESULTS: The TCI elements showed good internal consistency and good inter-rater reliability. The ad group performed significantly below the control group on all four TCI elements, with effect sizes exceeding 1.2, suggesting that the TCI has content and construct validity. CONCLUSIONS: Relative to cognitively intact older adults, older adults with ad dementia showed significant impairment on all four TCI conceptual elements. The TCI has promise as a standardized quantitative measure of TC to support clinical assessment of TC in forensic settings.

Cognitive Correlates of Impaired Testamentary Capacity in Alzheimer's Dementia.

BACKGROUND: Testamentary capacity (TC) is a legal construct about the ability to make or change a will. Although studies of financial and medical capacities have noted a strong association between capacity and cognition, no study has examined the cognitive correlates of TC in Alzheimer's disease (ad). METHODS: Study participants were 22 cognitively healthy controls and 20 persons with mild to moderate ad who were administered a neuropsychological battery and the Testamentary Capacity Instrument (TCI), a new performance-based measure of TC. Both TCI Element and TCI Total scores were calculated. TCI Total scores were calculated for the purposes of expanding correlational analyses (i.e., Pearson's product-moment) and are not intended for forensic TC evaluations. Final predictors were identified using linear and logistic regression modeling. RESULTS: All ad participants but one obtained TCI Totals that fell >2.5 standard deviations below the control group mean. Initial cognitive correlates of TCI performance were measures of general cognition, language, verbal memory, executive function, and processing speed. The four cognitive variables showing the highest t values and correlating with TCI Total score > 0.7 were entered into logistic and linear regression models. Final predictor models consisted of measures of verbal memory, executive function, and semantic knowledge and demonstrated shared variance of 0.71 (linear) and 0.82 (logistic). CONCLUSIONS: A diagnosis of ad dementia is associated with clinical impairment in TC and associated cognitive abilities and indicates that a legal assessment of TC is warranted. Second, the results offer insight into the cognitive basis of TC in persons with Alzheimer's dementia.

Civil responsibility in Geriatric Psychiatry.

Mental health issues impair decision-making capacity, more so in elderly people. Impaired decision-making capacity can make person unfit to enter into various civil deeds and agreements. Such civil deeds can include guardianship, property transaction, holding a bank account, having voting rights, making a will, donating an organ, etc. This article focuses on importance of mental health in entering into above-mentioned civil agreements, how to do assessments to determine if one is fit to enter into civil agreements, and what are the legal ways in which a person can avail help to execute his/her civil rights even when affected by mental health issues.

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.

Mapping dementia and cognitive decline in testamentary capacity.

Cognitive assessment is central to the evaluation of testamentary capacity. Such assessment is currently performed in a subjective, unreliable and non-standardized manner. Dementia, a cognitive illness, poses one of the largest threats to testamentary capacity in modern society. A better understanding of the ways in which dementia related cognitive impairment can affect a testator's ability to meet the relevant legal criteria to make a will is needed. A review of the literature over the past ten years focusing on what cognitive abilities are required to satisfy the legal criteria for testamentary capacity has highlighted an alarming scarcity of work in this area. There is little discussion spanning beyond general acknowledgement of the importance of memory and executive function. The specifics of how cognitive impairment impacts the four limbs of Banks v Goodfellow are rarely addressed. Several additional areas of cognitive function of importance to assessing testamentary capacity are the subject of this article.

The Geriatric Forensic Psychiatry Rotation at University of Chicago: Utilization and Educational Benefit of a Subspecialty Rotation in Psychiatric Residency Training.

Ten years ago, the University of Chicago Department of Psychiatry and Behavioral Neuroscience established a geriatric forensic psychiatry rotation for 4th-year psychiatry residents as one option in a required experience in forensic psychiatry. The rotation's primary emphasis was to learn about cases of testamentary capacity and undue influence. The program was supervised by a senior faculty member, an experienced clinician who was board-certified in Geriatric Psychiatry. RESULTS: Over the past decade, three of the 11 residents have pursued career paths in forensic psychiatry, while another has become a geriatric psychiatrist. More than half of the respondents have pursued geriatric and/or forensic work following their graduations, and all believe that what they learned in the rotation applied to their general practice work. All 11 indicated that the rotation increased their interest in and understanding of forensic work. Ten "strongly agreed" that the geriatric forensic psychiatry rotation was a valuable learning experience; one "agreed." On average, trainees worked on 4.64 forensic cases over the course of the rotation and attended 2-3 trials or depositions. Over the last 3 years of the program, all three of the participating residents have chosen to complete a forensic fellowship following the rotation. CONCLUSION: Residents affirm that a geriatric forensic psychiatry rotation is a valuable learning experience, one that has utility after their graduation. The University of Chicago Department of Psychiatry and Behavioral Neuroscience is committed to continuing this rotation as an important part of their forensic experience in resident education and to encourage more interest in the area of geriatric psychiatry.