The editors of the Journal and Dr. Gutheil deserve our gratitude for publishing an article that details some common pitfalls in the forensic evaluation of testamentary capacity. [1] It is worth noting that such pitfalls can be magnified by those hidden dangers common in both diagnostic reasoning and opinion formulation. [2] For example, there is the common human tendency to have first impressions become last impressions. This has been described as the heuristic of "anchoring." Since treating physicians focus on relief of suffering, they may anchor on an initial formulation of impairment level which, although helpful for treatment purposes, is misleading for forensic purposes. Even when a treating clinician is subsequently presented with the criteria for evaluation of testamentary capacity, it is more difficult to apply these criteria in an open-minded fashion without anchoring on the prior evaluation of impairment for specific treatment purposes. These considerations make it all the more crucial that the forensic evaluation be conducted separately from any clinical evaluation. [3] This separation is necessary to avoid any potential, if inadvertent, conflicts of interest whose influence, with all good intentions, cannot be easily prevented or undone. [4]

Harold J. Bursztajn, MD
Associate Clinical Professor of Psychiatry
Harvard Medical School
Boston, MA


  1. Gutheil TG: Common pitfalls in the evaluation of testamentary capacity. J Am Acad Psychiatry Law 35:514 –7, 2007
  2. Gopal A, Bursztajn HJ: DSM misuse pitfalls evident in clinical training and courtroom testimony. Psychiatr Ann 37:604 –17, 2007
  3. Bursztajn HJ: Competency to make a will. Am J Psychiatry 149: 1415, 1992
  4. Cosgrove L, Bursztajn HJ: Undoing undue industry influence: lessons from psychiatry as psychopharmacology. Organ Ethics 3:131–3, 2007