Evaluating Capacity To Make A Will - Psychological Autopsy And Assessment Of Testamentary Capacity

Main Category: Psychology / Psychiatry
Article Date: 08 Jan 2009 - 0:00 PST

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It is an ancient practice to state instructions for distributing one's property after death. In Genesis 48, Jacob verbally bequeaths his property to Joseph, Joseph's siblings, and Joseph's 2 sons. Wills existed in ancient Greece and Rome, with restrictions. In Greece, property was passed from father to eldest son, who could not be disinherited. Solon, a lawmaker in the early sixth century bc, changed this practice. He passed reforms that allowed a childless testator to designate an adopted son to inherit the estate - an early form of a will. The Twelve Tables of Rome provided that in addition to personal property, the testator's powers, duties, debts, and ancestral rights were distributed according to his will.

Fixed rules governed the inheritance of property in feudal England, so personal wills were not needed. After the Norman conquest of En¬gland in 1066, primogeniture provided that the eldest son inherited his father's estate; younger siblings were excluded. A landholder who died without living relatives forfeited his estate to the crown.

The Statute of Wills (1540), the Statute of Frauds and Perjuries (1677), and the Wills Act (1837) created basic requirements for a will. A will had to be in writing, signed by the testator, and witnessed by 2 disinterested parties. Gifts to witnesses or their spouses were not permitted. A will could be revoked only if another will was properly executed. Some of the American colonies adhered to primogeniture. Gradually, personal wills replaced fixed rules of inheritance. There is now an absolute right to dispose of one's property after death as one wishes (freedom of testation). Competent testators have every right to use their estates to financially assist those who brought them pleasure or comfort in life.

Stephen Noffsinger, MD
Dr Noffsinger is associate professor of psy¬chiatry at Case Western Reserve University School of Medicine in Cleveland and chief of forensic services at Northcoast Behavioral Healthcare in Ohio. He reports no conflicts of interest concerning the subject matter of this article.

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Psychiatric Times
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