brief , easy to learn

1. TESTAMENTARY CAPACITY
By
DR.SURESH
1ST PG
PSYCHIATRY
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2. OUT LINES
•INTRODUCTION
•DEFINITION
•IMPORTANT ELEMENTS
•FACTORS AFFECTING
•SYMPTOMS
•ASSESSMENT
•DOCUMENTATION FOR ASSESSMENT
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3. INTRODUCTION
Definition of a Will
A will is a legal declaration of the intention of the
testator, with respect to his property which he
desires to be carried into effect after his death.
After the death of a person, his property devolves
in two ways :
1) According to the respective laws of the land
when no will is made – i.e. intestate
2) By way of will – i.e. testamentary
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4. Acts operating in India
The Indian succession Act 1925
The Indian succession Act (Amendment) 2005
The Muslim personal laws
The Indian registration Act 1908
Various states of India have their own
amendments of Hindu succession Act 1956,
according to the local customs.
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5. If a Hindu male passes away :
• Hindu female shares equally with the male
• The wife as well as the mother also gets the
equal share
• There is nothing to prevent a Hindu male
from bequeathing his entire property to a
stranger if he so desires.
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6. Muslim male cannot will away more than 1/3
of estate and 2/3 of the property must be
divided among the family members in the
shares as laid down in the law.
•A Muslim wife cannot be dispossessed.
•Even though she shares with other wives ( if
more than one wife).
•The widow gets a definite share.
•The male heirs , sons get twice the share of
daughters.
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7. TESTAMENTARY CAPACITY
DEFINITION
Capacity refers to Person’s full sense and sanity
to have confirmed and signed the will after
understanding what his assets comprised and
what he is doing by making a will . He
understands in full mental capacity who he is
naming the assets to and how are they related
to him and what repercussion it may have later.
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8. Example case.
•John Banks , the testator clearly suffered from
a chronic serious mental disorder but was
deemed capable with respect to the execution
of his will because his delusions did not affect
the distribution of his assets.
•This judgment remains the test in most
common law jurisdictions today.
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9. THE BANKS V . GOODFELLOW
CRITERIA
•Understanding of the nature of the act (will
making) and its effects.
•Knowledge of the nature and extent of one’s
assets.
•Knowledge of persons who have a reasonable
claim to be beneficiaries.
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10. •Understanding of the impact of the
distribution of the assets of the estate.
•A confirmation that the testator is free of
any delusions that influence the disposition
of the assets.
•Ability to express wishes clearly and
consistently in an orderly plan of disposition.
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11. IMPORTANT ELEMENTS IN
TESTAMENTARY CAPACITY
1. It is a voluntary act on the part of the
testator :No compulsion only own decision.
2. The testator should have a sound disposing
mind :should not be suffering from any
mental disorder , should not be in the state
of intoxication
3. The testator should know what he is doing by
making a will
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12. Continue..
4. The testator should have sufficient capacity to
know the extent of property : should know
nature, extent and approximate value of his
property
5. The testator should be aware of the potential
beneficiary : know about the legal heirs
6. The testator should be aware of the
consequences of his decision
7. The testator should be free from undue
influence/fraud/coercion
8. The testator must have the knowledge of the
contents of the will
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13. FACTORS AFFECTING TESTAMENTARY
CAPACITY
1. PHYSICAL FACTORS: Medical disorders,
including head trauma, systemic diseases i.e.
metabolic , endocrinal, infectious and drugs
that affect brain functioning and mental state.
Alcohol : Both acute and chronic abuse effects
on cognition, judgment, behavior, perception
and impulsiveness.
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14. 2. PSYCHIATRIC DISORDERS
DEMENTIA :
Such as alzheimers disease , lewy body
dementia and vascular cognitive impairment
are characterized by diffuse cognitive deficits.
In dementia, executive impairment is
particularly important , as it can affect insight,
perception and judgment and impulse control
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15. • MOOD DISORDERS : Including depression and
bipolar disorder , may produce cognitive
distortions (delusions), compromise judgment
and cause irritability.
• DELUSIONS : Paranoid delusions such as in
schizophrenia, delusional disorders.
Other forms of neurological diseases , such as
dementia, delirium, acquired brain injury and
other brain lesions.
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16. 3. UNDUE INFLUENCE
The opportunity of the beneficiary of the
influenced bequest to mould the mind of the
testator to suit his/her purpose.
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17. Indications of undue influence :
• A confidential relationship existed between
testator and the influencer.
• The influencer used the relationship to secure a
change in the distribution.
• The change in distribution did not reflect the true
wishes of the testator.
• The testator was vulnerable to being influenced
either because of a neurological or psychiatric
disorders.
• The beneficiary actively participated in the
procurement of the will.
• There was undue benefit to the beneficiary.
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18. Behavioral clues to undue influence :
• Someone other than the testator (or his
lawyer) makes the appointment for the
evaluation
• The person transporting the testator to the
appointment is reluctant to permit him to be
interviewed privately.
• Details of the will are absent or the testator
appears vague about specific items in the will.
• The testator is hesitant about providing
information about the potential heir and his
relationship to that person.
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19. SYMPTOMS OF TESTAMENTARY
CAPACITY
THE FOLLOWING SYMPTOMS ARE THE POTENTIAL SIGNS OF
INCAPACITY TO MAKE A WILL
• Difficulties in attention and information
processing
• Language difficulties
• Memory difficulties
• Impairment of higher executive functions
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20. • Persecutory delusions about a family
member causing testator to exclude the
person from the will
• Delusions of poverty – the testator does not
realize the worth of his estate which may
influence his distribution of property.
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21. ASSESSMENT OF TESTAMENTARY
CAPACITY
•At the time of drafting the will , lawyers make
an initial assessment of testamentary capacity
but may call upon expert to assist in specific
circumstances
•Those experts are neuro-psychiatrists,
geriatric psychiatrists , neuro-psychologists.
•Expert role involves in conformation of
testamentary capacity and assessment of the
potential role of undue influence
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22. PROCESS FOR ASSESSMENT
•Get a letter from the solicitor detailing legal
tests.
•Set aside enough time for evaluation.
Examine at least two separate consultations
1) prior to the lawyer taking the instructions
from the testator.
2)prior to the execution of the complete will.
-The second consultation should be ideally on
the day testator executes the will.
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23. •Assess whether the client has dementia in the
standard way :
- thorough physical and neurological
examination.
-Psychiatric examination for delusions,
hallucinations ,thought disorders ,mood states ,
cognitive functions.
•Record the answers verbatim.
•Check facts such as extent of assets, with the
solicitor .
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24. •Ask about and review previous will.
•Ask why potential beneficiaries are included or
excluded.
•If in doubt about mental capacity seek second
opinion.
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25. COMMON COGNITIVE SCREENING
TESTS
• Clinicians and legal experts must understand
that cognitive tests are not diagnostic of
dementia and can be used as a measure of
capacity.
• Mini Mental State Examination (MMSE)
• CLOCK-DRAWING TEST.
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26. MMSE
Most commonly used cognitive screening test in
the world.
Total possible score is 30. Below 26 suggests
impairment
•Orientation to time (5)
•Orientation to place (5)
•Registration of 3 words (3)
•Attention and calculation (5)
•Recall of 3 words (3)
•Language (8)
•Visuo-spatial ability (1)
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27. Limitations of MMSE :
• it does not test specifically for frontal lobe
or executive brain functions.
•The score alone is not necessarily a
reflection of dementia or clinically significant
cognitive impairment.
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28. CLOCK DRAWING TEST
•This is a widely used cognitive screening
instrument .
•It consists a standardized circle with the
instructions.
•This is a clock face; please put in the
numbers so that it looks like a clock.
•The patient is then instructed to set the
time to 10 past 11.
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30. DOCUMENTATION
•Rational for making any changes in previous
will.
•Appreciation of consequences and impact
•Clarification of concerns about potential
beneficiaries
•Evidence of presence of specific neurological
or mental disorders that may affect cognition ,
judgment.
•Evidence of psychiatric symptoms at the time
of execution of will.
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31. • Testator’s understanding and appreciation of
any conflicts or tensions in his environment.
• Evidence of pathological or dependent
relationships with a formal or informal
caregivers.
• Evidence of inconsistencies in expression or
inability to communicate clearly.
• Any indication of undue influence.
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32. 32

33. Where there is a will , there is a law suit.
THANK YOU
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