Testamentary Capacity in a Client with Dementia and a Recent Will Change
Mrs. H, 81, is a widow with moderate Alzheimer's disease (MMSE 18/30, diagnosed three years ago). Six weeks ago she executed a new will that disinherited her two adult children and left her entire estate (approximately $2.4 million) to a nephew who began living with her eight months ago and who manages her finances. Her longtime attorney drafted the will after a 20-minute meeting; he noted she was 'pleasant and knew what she wanted.' Her daughter has petitioned to contest the will, alleging undue influence and lack of testamentary capacity. The court asks you to evaluate Mrs. H, who now has difficulty recalling the meeting, does not know the value of her estate, and says the nephew 'takes care of everything.' She cannot name her children in the interview but recognizes their photographs.
1. State the legal test for testamentary capacity and apply it to these facts.
Read the worked answer
The test (Banks v. Goodfellow) asks whether, at the time of execution, the testator knew: (1) the nature and extent of her property; (2) the natural objects of her bounty; (3) the disposition she was making; and (4) could hold these in mind long enough to form a rational judgment, absent delusional disorder affecting the disposition.
Application:
- Property: she cannot state the value of her estate and relies entirely on the nephew. This weighs against capacity, though a testator may rely on advisors if she understands in general terms.
- Natural objects: she cannot name her children but recognizes photographs - a meaningful distinction. Recognition suggests some retained knowledge; inability to recall names may reflect memory impairment rather than absence of knowledge. The examiner should probe further (does she know she has children, their names when prompted, why she is excluding them?).
- Disposition: does she understand that the will disinherits her children and benefits the nephew, and can she give a reason that is hers rather than his?
- Time of execution: capacity is judged at the moment of execution, not now. The 20-minute meeting and the attorney's note are relevant but thin; the attorney's observations are evidence, not a clinical determination.
The opinion must be carefully limited: current findings inform but do not determine capacity six weeks ago, and the examiner should say so explicitly.
2. How should the examiner address the undue influence allegation, and what are the limits of the forensic role here?
Read the worked answer
Undue influence is a legal question, but psychiatric and psychological evidence bears on it. The classic formulation considers: (1) a susceptible testator; (2) an opportunity to exert influence; (3) disposition to do so; and (4) a result that appears to be the product of that influence.
Evidence to gather:
- Susceptibility: moderate dementia, dependence on the nephew for finances and daily care, isolation from children.
- Opportunity and disposition: the nephew moved in eight months before the will, manages her money, and is the sole beneficiary.
- Result: a complete change from the natural plan, coinciding with the nephew's arrival, executed after a brief meeting.
The examiner should describe these factors and their weight, note the confound that the nephew is now her primary informant and gatekeeper, and seek independent collateral (prior wills, attorney notes, medical records, financial records, interviews with the children). The forensic role is to opine on capacity and describe psychological factors relevant to influence - not to decide whether the will is valid, which is for the court. Avoid becoming an advocate for either party, and disclose any prior relationship with the family or the nephew.