Testamentary Capacity

Under Anglo-American law, the right of testation refers to the freedom to choose how one’s property and other possessions will be disposed of following one’s death. For a will to be valid, the testator (the person making the will) must have testamentary capacity (TC) at the time that the will is executed. TC is thus a legal construct that represents the level of mental capacity necessary to execute a valid will. If TC is absent, then the will is void and fails. For reasons of public policy, courts have traditionally applied a low legal threshold for finding TC.

Conceptually, testamentary capacity (TC) falls within the broader concept of financial capacity, but for reasons of history and tradition, TC continues to receive distinct attention within the legal system. Each state jurisdiction, through its statutes and case law, sets forth the legal elements or criteria for TC. The absence of one or more of these elements of TC can serve as grounds for a court to invalidate a will. A will can also fail if the testator has an insane delusion that specifically and materially affects the testator’s creation or amendment of a will. Finally, a will is often challenged on the conceptually separate ground that it was the product of undue influence on the testator exerted by a family member or a third party.

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As TC represents a legal construct closely associated with the testator’s mental status, clinicians are often asked to evaluate TC and offer clinical testimony in legal proceedings. Such evaluations are sometimes conducted contemporaneously with a will’s execution but more often occur retrospectively following the incapacity or death of a testator and probating of the will. In recent years, there has been an increase in will contests in the probate courts, with associated claims of impaired TC and also undue influence.

There is currently relatively little literature on TC. Several papers addressing the general clinical guidelines for assessing TC and undue influence exist. However, there is a great need for conceptual and empirical work in this area.

Legal Elements of Testamentary Capacity

Although the requirements for TC vary across states, four criteria must generally be met. A testator must have (a) knowledge of what a will is, (b) knowledge of the class of individuals that represents the testator’s potential heirs (“natural objects of one’s bounty”), (c) knowledge of the nature and extent of his or her assets, and (d) a general plan of distribution of assets to his or her heirs.

The absence of one or more of these elements can serve as grounds for a court to invalidate a will due to lack of TC. However, the way in which courts weigh the legal elements of TC in determining the validity of a will varies across states. Some states require that the testator meet only one of the criteria for a will to be valid. Other states require that the testator not only must understand a will and demonstrate memory of all property and potential heirs but also must hold this information in mind while developing a plan for disposition of assets. Accordingly, the reader is strongly encouraged to review the relevant law on TC specific to his or her state jurisdiction.

Insane Delusion and Testamentary Capacity

Even when the legal elements of TC are present, a will can fail due to an insane delusion. Specifically, some states require that the testator be free of delusions and hallucinations that result in the testator devising property in a way that he or she would not have done in the absence of the delusions and hallucinations. A psychiatric disorder with delusions and other symptomatology is not by itself sufficient to invalidate the will. It must be shown that the delusion specifically and materially affected the testator’s creation or amendment of a will. In other words, the will must be the direct product of the insane delusion.

Undue Influence

A will can also fail on the separate ground that it was the product of undue influence. Although undue influence is conceptually distinct from TC, these two legal issues very often co-occur and intertwine when wills are contested. Under the law, undue influence exists in those situations where the will is the product of manipulation, persuasion, or coercion exerted by the “influ-encer” (e.g., family member, friend, neighbor, caregiver) and is not truly the volitional act of the testator. It commonly occurs in relationships where the testator has a special trust in or reliance on the influencer and where dependency has been increased through the influencer’s use of isolation and manipulation. In some instances, the testator may be subjected to explicit threats and intimidation by the influencer. Conceptually, undue influence assumes some preserved level of TC in the testator, which, however, is supplanted by the wishes and actions of the influencer. For this reason, undue influence should be considered conceptually distinct from TC, albeit closely linked to it. Clinicians need to understand both TC and undue influence when conducting evaluations in this area.

Attorney Observations of Testamentary Capacity

Typically, issues of TC may first arise in the context of a testator’s interactions with his or her attorney. During the course of the client interview, an attorney may observe signs of diminished TC, such as an inability to recall the names of family members or to appreciate the full value of different assets. Variability in a client’s state of mind and a lack of consistency between the client’s current choices and his or her long-term values and previously stated wishes can also raise red flags. From a professional standpoint, attorneys must be sensitive to indicators of diminished TC in their clients and, where necessary, take steps to protect their client’s best interests. In many instances, this may involve seeking consultation from a clinician.

Clinical consultation regarding TC can substantially inform the way in which attorneys and judges understand and determine the legal issues of TC. The role of clinicians in cases of TC includes informal consulting with attorneys about clients with questionable capacity, contemporaneous clinical evaluations of TC prior to will execution, and retrospective evaluations of TC in cases involving a now-deceased or incompetent testator.

Consultation Regarding Testamentary Capacity

An attorney may choose to consult with a clinician prior to, or instead of, seeking a formal clinical assessment. In this situation, the clinician provides an informal opinion regarding TC based solely on client observation and the information provided by the attorney. The clinician may also identify concerns or issues that the attorney may have overlooked, as well as suggest strategies for enhancing TC. Clinical consultation may assuage an attorney’s concern regarding a client’s TC or justify pursuing a formal clinical evaluation of TC.

Contemporaneous Clinical Evaluation of Testamentary Capacity

In certain circumstances, the testator, a family member, or his or her attorney may request that a clinician assess the testator’s TC prior to will execution. Two scenarios are common in such a referral. The attorney may have concerns about TC and desire clinical expertise and input on the issue before proceeding further. Alternatively, in cases of ongoing or anticipated family conflict, the attorney may seek to preempt a future will contest by having an assessment of TC conducted as part of the will execution.

Contemporaneous evaluations of TC are multifaceted and involve (a) collecting relevant data regarding the testator’s assets, potential heirs, and general cognitive and everyday functioning from collateral sources (i.e., a spouse, other family members, and friends); (b) conducting a comprehensive mental status examination of the testator to identify cognitive and psychiatric impairments that may interfere with TC; and (c) completing a thorough clinical interview of the testator to assess TC according to the above legal criteria. Spar and Garb have proposed a valuable semistructured interview approach that clinicians can use to assess TC. Because the validity of a will is dependent on the testator’s TC at the specific time that the will is executed, clinicians should conduct evaluations of TC as close to the time of will execution as possible.

Retrospective Evaluation of Testamentary Capacity

Although contemporaneous assessment of TC is highly desirable, retrospective evaluations probably represent the majority of these forensic assessments. Retrospective evaluations arise after the death or incompetency of a testator, when potential heirs or other parties contest a will on the grounds that the testator lacked TC at the time the will was executed. Retrospective evaluations of TC are based on a thorough record review and information obtained from the testator’s family, friends, business associates, and other involved professionals (often through deposition testimony). Primary attention is given to gathering evidence of mental status and neurobehavioral and everyday functional skills as close as possible to the date the will was executed. Relevant personal records include the testator’s business records, checkbook and other financial documents, and personal documents (e.g., letters, diaries, family films, or videos). Medical records can yield particularly useful information, including mental status, behavioral observations, diagnosis, level of impairment, dementia stage (if applicable), and psychological test results. Clinicians may also find it beneficial to interview the testator’s surviving family, friends, business associates, and other involved professionals regarding the testator’s cognitive and functional abilities at the time the will was executed.

Ultimately, the clinician must assemble all of this information and retrospectively determine whether or not the testator clinically had TC at the prior relevant legal time point(s). In some cases, it may not be possible to render such a judgment if there is insufficient evidence of the testator’s cognitive, emotional, and functional abilities contemporaneous with the prior will execution.

With respect to both contemporaneous and retrospective forensic evaluations of TC, it is important to emphasize that the clinician’s opinions regarding TC represent clinical judgments that the court may consider and weigh in arriving at a dispositive legal judg-ment of TC.

Research on Testamentary Capacity

TC as a civil competency represents a key knowledge gap in forensic science. There is relatively little published research on TC. Several good articles exist that provide general clinical guidelines and tips for assessment of TC and undue influence. However, there has been an absence of conceptual and empirical research in this area. Specifically, there is a need for cognitive and neuropsychological models of TC, assessment instrument development, and empirical clinical studies.


  1. American Bar Association Commission on Law and Aging & American Psychological Association. (2005). Assessment of older adults with diminished capacity: A handbook for lawyers. Washington, DC: Authors.
  2. Greiffenstein, M. F. (1996, May). The neuropsychological autopsy. Michigan Bar Journal, 424—125.
  3. Marson, D. C., Huthwaite, J., & Hebert, K. (2004). Testamentary capacity and undue influence in the elderly: A jurisprudent therapy perspective. Law and Psychology Review, 28, 1-96.
  4. Spar, J. E., & Garb, A. (1992). Assessing competency to make a will. American Journal of Psychiatry, 149, 169-174.
  5. Spar, J. E., Hankin, M., & Stodden, A. (1995). Assessing mental capacity and susceptibility to undue influence. Behavioral Sciences and the Law, 13, 391—103.
  6. Walsh, A. C., Brown, B. B., Kaye, K., & Grigsby, J. (1997). Mental capacity: Legal and medical aspects of assessment and treatment (2nd ed.). Deerfield, IL: Clark, Boardman, & Callaghan.