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Testamentary & Contractual Capacity

Wills and contracts are sometimes contested on the claim that the testator was not mentally competent to draw up the will or contract in question. Another question raised regarding each is the presence of undue influence or duress limiting voluntariness. The resulting lawsuits focus on reconstructing the state of mind of the testator at the time the will was created.

• Article: Conservatorship questions raised by Britney Spears case. Commonly raised questions in conservatorship matters.
• Case: In Re: Estate of Herbert Joel Zieben, Deceased. The forensic neuropsychiatric evaluation of testamentary capacity and undue influence.
• Book: Psychiatric Ethics and the Rights of Persons with Mental Disabilities in Institutions and the Community. This book, co-written by Dr. Bursztajn with Michael Perlin, Kris Gledhill and Eva Szeli contains case studies contributed by several of his mentees, was published on February 25, 2008 and is available for download at the UNESCO and the International Center for Health Law and Ethics at the University of Haifa websites. Physical copies of the book may be purchased by contacting the editor Amnon Carmi. All purchased copies will benefit the work of the International Center for Health Law and Ethics at the University of Haifa and will help them to continue their work in this vital area.
• Case: Dr. Bursztajn's evaluation of the capacity to deed a house with "tigers in the basement."
• Article: Assessing Testamentary Capacity. Dr. Bursztajn is quoted in an EldarLaw article, February 6, 1996.
• Case: John Doe v. Full-Service Brokerage Firm. Dr. Bursztajn's forensic neuropsychiatric evaluation of capacity to contract compromised by emotional trauma and head injury leads to a satisfactory resolution of a brokerage firm's fiduciary duties dispute with a client.
• Dr. Bursztajn's letter to the editors of the American Journal of Psychiatry on the importance of separating the roles of the treating psychiatrist and the evaluating psychiatrist in the assessment of competency to make a will.
• Case: "Forensic Neuropsychiatric Examination and Diminished Capacity for Marriage"

Some psychiatric conditions affecting testamentary capacity:

• Article: "Reciprocal Limbic-Cortical Function and Negative Mood: Converging PET Findings in Depression and Normal Sadness"

In 1948, the Massachusetts Supreme Judicial Court ruled the following, in the case Goddard v. Dupree:

"Testamentary capacity requires ability on the part of the testator to understand and carry in mind, in a 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." [ElderLaw Services, Vol. II, Issue 6, February 5, 1996]

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.

The American Board of Medical Specialties, Board of Psychiatry and Neurology now designates Forensic Psychiatry as a subspecialty. Certification in both psychiatry and forensic psychiatry should be considered in designating an expert to conduct the retrospective review and analysis necessary for a neuropsychiatric autopsy. Such dual certification can be helpful in carefully reconstructing the state of those biopsychosocial factors comprising testamentary and contractual capacity and vulnerability to undue influence most often, at issue in will contests and contractual disputes.

Dr. Bursztajn has an active patient care practice and consults to physicians, institutions, judges, and plaintiff and defense counsel nationally.