Direct clinical examination of the testator is the basis for contemporaneous assessment of testamentary capacity. In retrospective assessments where the testator is deceased, experts rely on collateral evidence, i.e. alternative sources of data about a testator’s testamentary capacity and mental function.
In the majority of retrospective assessments of testamentary capacity, the hospital and other medical records are relied on by forensic, psychiatric, and other medical expert witnesses to form these opinions.
Exceptions could occur if a testator documented testamentary capacity by video prior to his or her death. Videotaped execution of a will or trust can carry its own ambiguities (Holliman v. Johnson Court of Appeals of Arkansas, DIVISION II January 27, 2016, 2016 Ark. App. 39) and is not a widespread practice. In retrospective cases where the testator’s state of mind at the time a will was executed is ambiguous, experts rely on collateral evidence to provide support for conclusions in their report.
Experts may gather collateral evidence from a wide range of sources, including those who knew the patient and observed his functioning around the time the will was executed. Evidence from such collateral sources carries a significant risk of bias. Multiple sources of collateral evidence should be used. Third parties may have self-interest regarding whether the deceased is found to have been incompetent. Forensic psychiatrists should always be mindful of the possible ulterior motives of their informants.
Sources of collateral evidence in will contests include:
Wills and other documents by the testator
The forensic psychiatric expert should examine prior will(s) and the specific will in question. There may be multiple versions of a will for the court to consider, even if only one version of a will is presented for probate. (In the Matter of the Estate of Charles P. Galatis, Case No. 14P579, September 9, 2015). As noted above, a testator may have recorded a videotaped execution of his or her will or trust, intending to demonstrate testamentary capacity and provide evidence of being engaged in the execution of the will or trust. However, the videotape may also reveal evidence against testamentary capacity, such as hearing and visual impairments (Holliman v. Johnson Court of Appeals of Arkansas, DIVISION II January 27, 2016, 2016 Ark. App. 39). Alongside the will itself, the court may also consider letters, deeds or other documents executed by the testator. These may reveal contradictory intentions for distribution of the testator’s assets (In re Estate of Farnes, Minnesota Court of Appeals A15-0673, File No. 10-PR-13-84, February 8, 2016).
In addition to medical records and reports from the testator’s treating physicians and nurses, the forensic psychiatric expert can review notes from allied health professionals including physical, occupational and respiratory therapists. Acute or chronic medical illness such as diabetes or terminal cancer may impact a testator’s competency at the time of signing a will or weaken a testator who is then vulnerable to influence of others (In re Will of Aoki, Supreme Court, Appellate Division, First Department, New York, July 17, 2012, 99 A.D.3d 253). Medical treatment providers may record differing opinions regarding the testator’s ability to execute a will (Supreme Court of Georgia. Prine v. Blanton. No. S11A1315. January 9, 2012).
Psychiatric and mental health records
Mental health records from treating psychiatrists, psychologists and/or mental health providers can offer key insights about the testator’s intellectual functioning. For example, a testator with Alzheimer’s disease or delirium who is comatose on the day of the executed will would not have testamentary capacity (In re Succession of Barattini Court of Appeal of Louisiana, Fifth Circuit 91 So.3d 1091). Psychiatric records may reveal differential effects of medications, bereavement, acute or chronic psychiatric symptoms or disorders that need to be factored into the expert’s analysis (In re Estate of Hayes, J-A04007-14, No. 560 WDA 2013, 63-08-0749, March 11, 2014).
Nursing home and community care records
These can include documentation from home health aides, residential care notes from medical and administrative staff, and/or community care notes. The court may rely on observations from staff working closely with the testator who recorded contemporaneous evidence of impaired cognitive skills or inability to make basic daily decisions at the time a will was executed (In re Succession of Sirgo Court of Appeal of Louisiana, Fifth Circuit October 29, 2014, 164 So.3d 832).
Interviews with individuals who interacted with the testator
The forensic psychiatric expert may conduct interviews with multiple individuals who interacted with the testator in different roles, including the testator’s spouse, stepson, friends, clergy, social workers, the testator’s attorney and others (In re Estate of Hirnyk, Superior Court of Pennsylvania, No. 376 WDA 2015, February 9, 2015), (In re Estate of Parrimore, Houston 14th Court of Appeals, NO. 141400820CV, February 25, 2016), (Shepherd v. Jones Court of Appeals of Arkansas, DIVISION II April 29, 2015 2015 Ark. App. 279), (In re Estate of Nalaschi, No. 1267 MDA 2013, Superior Court of Pennsylvania, April 11, 2014). These observers may offer important insights into the testator’s mental functioning at various points in time, though their evidence may be contradictory (In re Succession of Wesley, 174 So.3d 23, 2015). There are often conflicts of interest involved in such relationships. Observers may be biased and over- or underestimate a testator’s ability to understand financial matters. Children who were excluded may be particularly vulnerable to bias. (In re Estate of Sidransky No. 08-10-00361-CV, Probate Court of El Paso County, Texas TC # 2007-P00977, August 15, 2012).
Police reports, records, and incident reports can contain crucial collateral evidence to be considered by the forensic psychiatric expert witness. (In RE: Estate of Hirryk, Superior Court of Pennsylvania No. 376 WDA 2015, 2/9/2015.)
A forensic psychiatric expert may request a list of the testator’s assets from a corroborative source. If the testator has joint accounts, joint accountholders may exert influence over the testator regarding changes to ownership and beneficiaries of those accounts. For example, in the case of Estate of Kester v. Rocco (District Court of Appeal of Florida, First District. June 24, 2013117 So.3d 1196), a bank officer testified that the decedent acted without confusion or anxiety when she changed her financial accounts. Financial records can be reviewed to determine the extent to which the individual was managing his or her own financial affairs in the months leading up to the signing of the document in question.
The forensic psychiatric expert in will contest cases may have many sources of available collateral evidence to consider when forming his/her opinion on testamentary capacity.
About the Author
Karen Reimers, MD is board certified in Psychiatry in the USA and Canada. Dr. Reimers has an active clinical practice focusing on geriatric psychiatry and addictions. She has special interest in cognitive impairment, testamentary capacity and undue influence. Dr. Reimers is fluent in German and French. She enjoys teaching Psychiatry residents in the Twin Cities. She can be reached at firstname.lastname@example.org or (612) 326-0679.