Medical reasons for retrospective challenges of testamentary capacity

Abstract

Objectives: The aim of this study was to establish the morbidity structure among testators whose wills were challenged as well as to reveal if there is a specific relationship between certain diagnostic categories in the testators' health status and forensic psychiatry expert opinion on testamentary incapacity.

Subjects and methods: The authors analyzed 156 consecutive forensic psychiatry reports on retrospective, determination of testamentary capacity made in the Forensic Psychiatry Centre, Institute of Psychiatry, Belgrade in the period 1965 - 2005. The wills covered by this study were mostly made by male, 65 years old or older testators, with primary education, who executed a holograph will and survived it for less than a year.

Results: Testamentary incapacity for medical reasons was established in 47% of the testators, while a strong, statistically significant relationship between a diagnostic category and testamentary incapacity was established among the testators suffering from an organic mental disorder (Chi-square=133.256, p=0.000) or a substance induced mental disorder (Chi-square=6.971, p=0.008).

Conclusion: Testamentary capacity is a specific focus of medical assessment given that the evidence for overturning a will is generally dependent upon medical assessment. In that respect, much litigation and expenses could be avoided if medical experts were given a chance to correctly assess the testamentary capacity of a person at the time of making a will. The fact remains that our findings may not be a representative cross-section of the general population, and this important issue certainly deserves to be addressed by future research based on a larger sample.