Assessing Testamentary Capacity

ElderLaw, Volume II, Issue 6, Feb. 5, 1996

How do you know when an individual is competent to execute a will? The standard hasn't changed since it was set out in 1948 by the Massachusetts Supreme Judicial Court in Goddard v. Dupree as follows:

Testamentary capacity requires ability on the part of the testator to understand and carry in mind, in general way, the nature and situation of his property and his relations to those persons who would naturally have some claim to his remembrance. It requires freedom from delusion which is the effect of disease or weakness and which might influence the disposition of his property. And it requires ability at the time of execution of the alleged will to comprehend the nature of the act of making a will.

"Thus," according to Harold J. Bursztajn, M.D., a forensic psychiatrist in Cambridge, "contrary to all-too-common stigmatization of the mentally ill, a person with schizophrenia cannot be assumed thereby to lack testamentary capacity unless at least one of these specified functions is impaired."

In fact, less capacity is necessary to execute a will than for many other functions, such as entering into a contract. In Farnum v. Silvano in 1989 the Massachusetts Appeals Court reversed the sale of a home by a 90-year-old woman suffering from organic brain disease. The sale was for half of the house's market value. The court contrasted competency to sell property with testamentary capacity, the latter only requiring understanding at the time of executing the will. "[A] peson of pathologically unsound mind may possess testamentary capacity at any given time and lack it all other times." Competency to enter into a contract presupposes something more than transient surge of lucidity. It requires the ability to comprehend the nature and quality of the transaction, together with an understanding of its significance and consequences.

As Dr. Bursztajn explains, "testamentary capacity is customarily considered the lowest level of competence. Even someone who has a guardian of person may have testamentary capacity, despite a rebuttable presumption that she does not."

While the standard as described above may seem clear, applying it to a particular individual can be difficult. Dr. Bursztajn suggests that "with respect to testamentary capacity, as with other forms of competence, the treating clinician should refer the patient to someone in a position to make an objective evaluation. The treating clinician's proper concern with relieving the patient's suffering precludes objectivity in conducting a competency evaluation for deathbed will revisions. The clinician may confuse competence to consent to treatment with competence to dispose of property, each of which must be assessed independently."