Neuropsychological autopsy of testamentary capacity: Methodology and issues in the elderly

Abstract

The forensic assessment of testamentary capacity is a topical issue given the prevalence of dementia illnesses and the increase in the complexity of modern financial and family structures. Although a contemporaneous assessment would be desirable, the majority of situations require a retrospective assessment of the mental state a deceased individual. Neuropsychologists, independently or as part of a board of consultants, are, therefore, frequently requested to give an expert opinion of the competence of cognitively impaired elderly testators.

This paper offers a guide for carrying out a neuropsychological autopsy, namely the process of posthumous evaluation, for determining testamentary capacity. Taking into account the recent literature on the assessment of testamentary capacity, we propose a three-phase procedure for carrying out the neuropsychological autopsy in the forensic context. The neuropsychological autopsy of testamentary capacity is based on the meticulous, chronologically structured evaluation of any medical documents, available psychometric data, along with the critical examination of any source of information about the cognitive level of functioning of the deceased person at the time of the will.

Keywords:

• Elderly population
• legal competency
• neuropsychological autopsy
• testamentary capacity

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 The terms ‘capacity’ and ‘competence ’are sometimes used as synonyms. However, ‘capacity’ usually refers to the clinical status of an individual to perform an act, while ‘competency’ is usually a matter of a specific legal question (Shulman et al., 2005).

2 The holographic will is the simplest testamentary form. Its chief virtue is convenience, without involving lawyers or witnesses. The intent of written form is to safeguard the will’s authenticity, through which the testator can be reassured their last wishes will be executed by merely putting pen to paper (Bird, 1980).

3 As pointed by Sinyor et al. (2015), nowadays holograph wills are valid in only some US jurisdictions but their acceptance may become more common due to their recognition by the American Model Probate Code and through the Wills Act. Also in Australia, the validity of holograph wills varies from state to state, where even unwitnessed and unsigned wills have been recognized in probate. English law does not recognize the validity of holograph wills, while in Scotland, a holograph will may be valid if there is sworn evidence to support that the writing in the will is that of the testator. The validity of holograph wills is recognized by Canada and a host of EU countries including, Germany, France, Italy, Spain, Austria, Belgium, Bulgaria, Poland, Slovakia, Croatia, Czech Republic, Estonia, Greece, Hungary, Latvia, Lithuania and Luxembourg. In certain other European countries, such as Finland and Sweden, holograph wills are only recognized if written within a certain period before the testator’s death.