Will Contest and Estate Planning Competency:
the Role of a Forensic Psychiatrist
By Pia Quimson-Guevarra, DO
Testamentary capacity describes the competency of the testator to comprehend a Will they are signing with understanding and meaning.
Criteria for competency to enter into a, a will, contract or revocable trust is evaluated with a forensic psychiatrist’s very specific skills and tools.
Criteria is also established by law and varies among states.
- Prior to Signing a Testamentary Document: Testamentary Capacity and the role of the Forensic Psychiatrist as an evaluator are discussed in this article. In a Will Contest, attorneys will better understand the role of a Psychiatrist (vs. Psychologist). Competency overall is a broader question and depends on the context. Keep reading.
- Will Contests, Posthumous Evaluation. Learn what about testamentary capacity assessment when the testator is deceased. A forensic psychiatrist’s assessment is unique in this Scenario. Keep reading.
- Competency. Mental Competency is evaluated in a range of settings from entering into a contract to competency to stand trial. Laws in each of these jurisdictions are not consistent because the threshold, standard and consequences are different. Keep reading.
- Disease and Mental Clarity. Age is not always a factor, but Dementia, Alzheimer’s, and other diseases of the elderly are a consideration. Mental status at the time a document is signed is usually the focus of a will contest, even if it was years prior to death. Keep reading.
- Concerns of Elder Abuse. Often (but not always) testamentary capacity is evaluated in elderly testators. Concerns about Dementia, Alzheimer’s, undue influence, and potential for elder abuse are serious. Keep reading.
Testamentary Capacity. During a Will contest, a forensic psychiatrist can provide valuable expertise by assessing testamentary capacity, or the testator’s ability to make his/her Will.
If the testator lacked testamentary capacity, the Will could be invalidated.
In some states, a Will is separate from other vehicles that individuals may use to distribute their estate on death, such as a Revocable Trust. In Oregon, the law treats capacity to enter into a revocable Trust or a Will similarly. They both serve to appoint decision-makers and identify how the estate is to be distributed.
Nothing to do with the Testator. Sometimes a Will is contested for reasons that have little to do with the testator’s state of mind.
Why do people contest a Will? To answer this question, it is important to remember the contest is almost always made by beneficiaries, or those who feel they should have been beneficiaries, but learn they are not.
Often they are family members, though charities or others receiving a bequest could be parties to the action. Anyone who has a financial or emotional stake in the matter can question whether the Will reflects the sound mental state of the testator.
Power and Fiduciaries. People also contest Wills over control of an estate. Even where there is no conflict about the amount of a bequest, testamentary capacity is relevant about any aspect of the Will or Trust. An Executor/Administrator/Trustee/Court-Appointed Fiduciary can have a considerable amount of power over the management of the estate. If there is a rift in trust between beneficiaries and Administrator(s) of an Estate, the probate court may be asked to hear the matter.
Power Dynamics: Who Controls the Estate? Even if there are no conflicts about the bequest amount, people have other reasons to challenge a Will. Grievances, accusations of undue influence, even a belief the Administrator is unfit psychologically to carry out their duties have appeared in Will contest cases. In each of these cases, a Forensic Psychiatrist may be able to shine a light.
The Psychology of Secondary Gain. Malingering is “lying for secondary gain.” Malingering is not a clinical psychiatric term; it is a legal concept. Tools to assess for malingering in an IME are taught in Forensic Psychiatry Fellowship. This is, in part, because of the relationship between what a person says, what a person believes, and what a person is seeking from the legal system.
What is “secondary gain” for a beneficiary? Is it financial or psychological or both? Or neither? Gain can certainly mean inheriting money, real estate, jewelry, or other items of monetary value. A psychiatrist also considers non-monetary gain.
For example, if the “gain” is inheriting items of sentimental value, or the desire to right what a “wrong” perceived from the terms of a Will. ‘Who gets what’ may feel like a form of favoritism by the testator that can only be attributed to a lack of capacity. At this point things get more psychologically complex. Subtler forms of secondary gain could include sibling rivalry, the need to “win,” or “punish” a beneficiary who is a family member.
A forensic psychiatrist’s role in a Will contest isn’t as a family therapist. However, emotional motivations may be a piece of any medical-legal psychiatric assessment.
Unravelling the issues at play in a Will contest is squarely in the wheelhouse of a physician qualified in medical-legal application of psychiatry.
Is capacity to sign a Will the same as signing a Trust?
Estate plans vary in the vehicles used to transfer property on death. Revocable Trusts and other instruments might have been signed in addition to a Will. A revocable trust has benefits better addressed by an estate planning attorney. Of particular interest in a will contest, however, is the large estate where a trust governs distribution. Millions of dollars may be in play. For that reason, probate litigation may well require an expert witness qualified to testify. Note, the law and legal precedence vary depending on the act of the person to make bequests.
Evaluating testamentary capacity to sign a Will may not be the same as competency to enter into a contract. E.g. a deed, business contract, purchase of property or sale of property can all change the nature of the estate once the person has died and the dust settled.
Laws about contracts, and fraud are not the same as probate laws about testamentary capacity. Nevertheless these issues may appear in probate litigation and competency questions. An expert witness who can testify about nuances regarding competency in signing any legal document may well be a Forensic Psychiatrist.
Oregon law considers Testamentary Capacity to include either a Will or a Revocable Trust.
Generally speaking, testamentary capacity, or being of “sound mind,” requires the testator:
- Know the natural objects of his or her bounty;
- Know the nature and extent of his or her property;
- Understand that he or she is signing his or her will; and,
- Know what the will accomplishes.
States and case law define the criteria and scope for testamentary capacity differently.
Is a Forensic Psychiatrist qualified to evaluate competency to sign a Trust? Is it the same as a Will?
Yes, a Forensic Psychiatrist is unusually well-qualified to evaluate testamentary capacity.
I am trained and skilled as a forensic psychiatrist to evaluate mental state, diagnose (or rule out) psychiatric illnesses, and consider medical or mental vulnerability to undue influence or other factors that could impact testamentary capacity.
Board-Certification in Psychiatry by the American Board of Psychiatry and Neurology reflects training in both mental competency and brain function (though a psychiatrist is not a neurologist or vice versa.) Forensic Psychiatry training places medical training in the context of a legal matter such as probate litigation. It is an unusually powerful combination in the appropriate expert witness.
Competency criteria assessed by a Forensic Psychiatrist: As stated above, the distribution of an estate is not always limited to testamentary capacity or a will.
In some states, a Trust is a contract, and competency to enter into a contract is not the same as a Will. In others, the criteria are the same. They are the same under Oregon law.
These are legal questions. Again, a Forensic Psychiatrist who is Fellowship trained will have addressed competency as it factors in legal questions. A clinical psychiatrist does not have this training. I advise attorneys about the strengths and weaknesses in the qualifications of other experts, for this reason.
How do you assess capacity?
> Interview the testator. This usually occurs before the Will is signed. An interview is a primary factor in assessing capacity. It is not the exclusive element in assessing capacity.
> Speaking to medical providers and reviewing records are a valuable adjunct to my personal interview of the testator in assessing capacity.
If the testator is deceased
A Will Contest generally follows the testator’s death. This is when those who believe they are beneficiaries, take issue with the terms of the Will. I do not have the benefit of a first-hand interview with the testator and may rely primarily on other records and sources of information I deem appropriate.
Medical considerations whether the testator is alive or deceased.
A Forensic Psychiatrist is a medical doctor. I am qualified, therefore, to apply focused qualified consideration of medical material.
Diagnosis is not made in a vacuum. The diagnoses of treating physicians may reveal more about whether or not the testator was impaired mentally.
Diagnosis(es) rendered prior to the time of signing a Will, during the signing of the Will, or after, are relevant. In addition, if an autopsy was performed, posthumous diagnoses could include the presence of a degenerative brain disease or other physical condition impacting impairment.
All medical conditions are considered, not only psychiatric.
Considered medical information might include
- treating provider and nurse notes and reports
- hospital records
- EMT reports
- chart notes of healthcare staff and visiting doctors at an assisted living or care facility
- neuropsychological testing
- Mental Status Exam (MSE) or Mini-Mental Status Exam (MMSE) administered to the testator. These are sometimes administered by unqualified individuals, such as an attorney. They are also administered by qualified non-medical personnel such as a neuropsychologist.
Regardless of Age
The person signing a Will could be any age.
We tend to think of the elderly person, perhaps impaired by Dementia or Alzheimer’s Disease, as the usual focus of a testamentary capacity legal controversy.
That is not always the case. For example, Early Onset Dementia may appear in a person under the age of 65.
Symptoms of other medical conditions may also co-exist with other factors that impair judgment—temporarily or over an extended period.
Mental Illness, Addiction, and other Factors
I am sometimes asked if a mental illness or an addiction can be a factor. It is important to note that having a mental illness or substance use disorder does not by itself mean a testator lacks testamentary capacity.
Addiction. An Addict may not be “using” at the time they sign a Will. An addict in recovery for many years, absent any other medical condition, might have testamentary capacity. However, an addict actively experiencing withdrawal, could have symptoms such as delusions or paranoia. Signing a Will during withdrawal suggests a psychiatrist’s close review of the matter.
As a physician, I assess symptoms, diagnoses, and treatment for any potentially impairing condition.
An example of symptoms to evaluate are cognitive deficits, which include difficulties in memory, decision-making, problem solving, and attention. If deficits in these functions were present at the time of making a Will, this can impact the testator’s capacity. It is important to mention that a decline in cognitive functions can occur in those with Dementia.
In addition to medical records, if legal action is taken, I might review depositions and records of those who have observed the degree of the testator’s lucidity, e.g. a financial advisor.
I may conduct interviews of “collateral informants.”
A Collateral Informant is anyone with information of interest–especially important if the testator has passed away.
Who is likely to be a source of collateral information? This is anyone besides the testator, who has information that might be of interest to me.
For example, a health care provider who visited the testator on the day the Will was signed, staff at a care facility, witnesses to the signing of the will, family members, or friends. I do not take all information at face value.
Malingering by a Collateral Informant. A Forensic Psychiatrist is trained in techniques used to detect malingering—intentional lying for secondary gain, especially important when the collateral interview is with a person impacted by the Will.
I don’t assume someone is lying, only that it is one consideration by a Forensic Psychiatrist. This is outside the scope of the training of a clinical psychiatrist who has no medical-legal training.
Testator is deceased. What can others tell us now? The goal is to interview anyone who can speak to the testator’s mental clarity or state of mind. If the testator is no longer living, collateral interviews may produce valuable information.
Whenever relying on the “word” of another person–especially someone with a vested interest, Malingering is a consideration.
Malingering means “lying for secondary gain.”
Secondary gain could be tangible, like money.
More rarely it is intangible, like pursuing praise, such as a caregiver or adult child of the testator.
A clinical psychiatrist or non-psychiatrist physician is not qualified to assess Malingering. Forensic Psychiatrists are qualified to assess Malingering.
Another factor a forensic psychiatrist assesses for is undue influence.
This can happen if an individual manipulates or deceives a testator such that the testator’s ability to freely decide how his/her property is distributed is impacted.
Forensic psychiatrists have an important role in will contests by evaluating if there were any factors impeding a testator’s ability to make his/her will.
If undue influence is alleged, and the plaintiff/defense and/or “influencer(s)” are family members, family dynamics could play a part. As a psychiatrist with a clinical practice, I treat patients who struggle with their family relationships. I find this experience helpful where a family is suing one another. Allegations of undue influence between family members may very well be such a situation.
It is the job of the forensic psychiatrist to evaluate if the testator did, or did not, have symptoms or behaviors that impacted his/her ability when making a will.
 “To have mental capacity, the testator must have the ability to know: (1) the nature/extent of property; (2) the natural objects of her property; (3) the disposition that her will is making; and (4) the ability to connect all of these elements together to form a coherent plan.” https://www.law.cornell.edu/wex/testamentary_capacity (1) the nature/extent of property; (2) the natural objects of her property; (3) the disposition that her will is making; and (4) the ability to connect all of these elements together to form a coherent plan.” Cornell Law Institute, https://www.law.cornell.edu/wex/testamentary_capacity
Creating a Will with understanding and lucidity is legally significant. Contests can and do occur over the competency of the person who made the Will or Trust.
She renders medical opinions in legal matters, including testamentary capacity and competency evaluations, and treats patients in private practice.
Dr. Quimson-Guevarra wrote this article to help readers understand the psychiatric evaluation before or after death of the testator.