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13 Psych. Inj. & L. 1 (2020)

handle is hein.journals/psyinjl13 and id is 1 raw text is: Psychological Injury and Law (2020) 13:1-10 https://doi.org/l0.1007/si2207-019-09365-7 Testamentary Capacity and Undue Influence: Assessments and Problematic Techniques Eric G Mart' Received: 6 August 2019 /Accepted: 22 October 2019 /Published online: 18 December 2019 © Springer Science+Business Media, LLC, part of Springer Nature 2019 Abstract As the population of the USA ages, mental health practitioners are increasingly called upon to assess civil capacities. This paper provides information regarding the assessment of testamentary capacity and the related issue of undue influence. A brief review of the legal standards that inform these types of assessments is provided, including a discussion of the Goodfellow legal criteria and the relationship between delusional thinking and validity of will or trust. This paper reviews methods for performing these types of assessments with both living and deceased testators, including a general overview of methodology, suggestions for test choice and use, and the expert's role in probate court. The overuse of inappropriate psychometric instruments is also discussed. Common problems with assessments and testimony in this area of practice, such as the conflation of diagnosis and functional capacity, and misunderstanding of the applicable legal standards, are reviewed. This paper concludes by suggesting that the courts and mental health professionals may be working at cross purposes in this area of practice. Keywords Testamentary - Capacity - Undue - Influence - Assessment - Civil - Testator - Delusion The population of the USA is aging. Data from the US Census Bureau (https://www.census.gov/popclock/) indicates that by 2020, more than 20% of Americans-66,000-will be 65 or over, while only 202,621,000 will be between 18 and 64 years of age. This trend is projected to continue, and in 2035, for the first time in history, the number of people 65 and over will be larger than the number under 18 (Nasser, 2019). This trend, which has been going on for some time, has created increased demand for elder services, including in-home healthcare and assisted living. It has also created an increased demand for psychological assessments related to the civil capacities of older people. As the population ages and people live longer, ques- tions arise with greater frequency about civil capacities. These issues include: - Capacity to manage finances - Capacity to enter into contracts - Capacity to give consent for medical treatment - Capacity to engage in sexual relationships - Capacity to many - Capacity to care for self and the need for guardianship Eric G Mart emart@comcast.net Eric G. Mart & Associates, 230 Lafayette Rd, Portsmouth, NH 03801, USA A related issue which has required psychological or neuro- psychological assessment with greater frequency is an indi- vidual's capacity to make or modify a will or trust. An asso- ciated issue is that of an equitable doctrine, or so-called undue influence regarding estate planning. This article will provide a brief overview of the laws that inform the assessment of tes- tamentary capacity and undue influence (i.e., a testator being taken advantage of by pressure to perform a legal act) and also provide information regarding methodologies for assessing these issues, whether performed contemporaneously or retro- spectively. Common problems and errors in performing such assessments will be reviewed, as well as emerging issues re- garding these types of evaluations. Legal Standards In the West, nearly all post-literate societies have had laws or customs that allowed people to direct the distribution of their property upon their death. American laws regarding wills and trusts, while varying from jurisdiction to jurisdiction, are de- rived from English law. In 1540, the Parliament of England enacted the Statute of Wills (32 Hen. 8, c.1), which codified the right for landowners to decide who would inherit their land upon their death. It also required that the testator have a sound and disposing mind at the time the will is written, a t Springer

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