When to Get a Testamentary Capacity Evaluation and When Not To
By Dr. Tyler Gerdin, PsyD, ABPP | Gerdin Psychological Services
An 81 year old man sits across from his estate attorney, ready to update his will for the first time since his wife passed. He is sharp most days. He’s a little slower with names, maybe, and his daughter has quietly raised concerns about a new friend who has started helping with his bills. The attorney pauses before drafting a word. If this will is ever challenged, what will anyone be able to show about his thinking on this particular morning?
That question is what a testamentary capacity evaluation exists to answer.
What Testamentary Capacity Actually Means Under the Law
Testamentary capacity is the legal ability to make or change a will. The standard traces back to an 1870 English case, Banks v. Goodfellow, and still rests on four questions. Does the person understand they are making a will? Do they know roughly what they own? Do they know who would naturally expect to inherit (what the law calls the “objects of their bounty”)? And do they have a coherent plan for distributing it?
The bar is intentionally modest, and the law presumes capacity. A diagnosis of mild cognitive impairment, or even dementia, does not automatically erase it (Shulman et al., 2009). Capacity is task specific and time specific. Someone may struggle on Tuesday and be perfectly capable on Thursday.
The bottom line: the question is not whether someone is impaired. It is whether they could do this one thing, when it mattered.
Why a Capacity Evaluation Before Signing a Will Is Worth Doing
Testamentary capacity is the most frequently litigated form of capacity (American Bar Association & American Psychological Association, 2008). When a will is challenged after someone has died, experts must reconstruct that person’s thinking from medical records, fading memories, and family members who rarely agree. An evaluation done close to the signing (a contemporaneous evaluation) is more reliable than one pieced together afterward, and it can reduce the chance of a challenge in the first place (Kenepp et al., 2021).
An evaluation is often worth considering when:
Conflict is likely. The will disinherits someone, departs sharply from an earlier version, or favors a newcomer over longtime family.
Thinking has changed. There is a recent cognitive diagnosis, noticeable decline, or a psychiatric condition that could cloud judgment.
Vulnerability is present. The person is grieving, isolated, or dependent on others for finances or daily care. These are the circumstances where undue influence tends to take root (Kenepp et al., 2021).
When a Testamentary Capacity Evaluation May Not Be the Right Step
A simple will with no red flags. The legal presumption of capacity already does its job here. An evaluation adds cost, and it may even suggest doubt where none exists.
The person hasn’t truly agreed. The evaluation belongs to the person making the will, not to the relative hoping for a particular result. If someone is being pushed into it, that is itself worth noticing.
It’s poorly timed. Capacity can fluctuate, so an evaluation months before the signing says less than one done close to it (Roche, 2019).
The evaluator already has another role. A person’s own therapist or treating psychologist should not also serve as the independent evaluator. Those roles pull in different directions.
What a Thorough Testamentary Capacity Assessment Looks Like
Not all capacity evaluations are created equal. Here is what a psychologist doing this work well should be doing.
Setting clear expectations first. Before any testing, the psychologist explains why the evaluation is happening, who requested it, what it costs, and that the results may reach a court, where ordinary confidentiality protections may not apply. The person should know they can ask questions, and, if the evaluation isn’t court ordered, that they can decline (Roche, 2019).
Knowing whom they answer to. A careful evaluator is clear about who retained them and guards against any relationship (with an attorney, an heir, or anyone else) that could quietly shape the outcome (Roche, 2019).
Reviewing the history before meeting the person. That includes medical records, prior wills, and any earlier neuropsychological testing. When prior testing exists, repeating some of the same measures shows whether thinking has changed over time (Roche, 2019).
Assessing the thinking skills the task requires. A will requires language comprehension, memory, reasoning, planning, and some grasp of quantities and value. The testing should cover those abilities specifically (Kenepp et al., 2021; Hoffman, 2018, as cited in Roche, 2019). It should also be appropriate for the person’s language and background, because a test given in someone’s second language can mislead.
Pairing judgment with data. Clinical judgment matters, but it isn’t infallible. Conclusions grounded in objective, standardized measures tend to be more accurate than judgment alone (Kenepp et al., 2021). A brief memory screen and a friendly conversation are a starting point, not a conclusion.
Interviewing directly on the legal question. Test scores alone can’t settle capacity (Kenepp et al., 2021). The psychologist should walk the person through each of the four Banks elements in their own words: what they own, who their family is, what they want to happen, and why. When the plan is unclear, that part deserves the most time (Roche, 2019).
Checking mood and mental health. Depression, grief, and psychiatric symptoms can all affect decision making. A delusion doesn’t automatically erase capacity, but if it distorts how someone sees the people in their will, it matters (Kenepp et al., 2021).
Looking for undue influence. Simple, direct questions help: Whose idea was this? Did anyone pressure you? So does asking what prompted recent changes and who was involved (Kenepp et al., 2021).
Gathering outside perspective. Care staff, longtime friends, and records can confirm or complicate the picture, ideally from people with no stake in the inheritance (Roche, 2019).
Respecting values. An unusual will is not the same as an incapacitated one. Religious, cultural, and personal values often explain choices that surprise others, and the psychologist should understand those values before judging the decision (Roche, 2019).
Giving the person a fair chance. A familiar setting, the right time of day, clear explanations, and attention to grief or depression can help someone show what they’re capable of. If supports or treatment might change the picture, a follow up evaluation may be the right recommendation (Roche, 2019). The aim is to see the person at their best, not to catch them at their worst.
Writing for a judge. The report should explain how each legal element was assessed rather than offering a general statement about cognition. Test data and norms should be carefully documented, since a court may later ask to see them (Roche, 2019).
A will records a decision. A good capacity evaluation protects the person who made it.
Testamentary Capacity Evaluations in Spokane, Washington
If you are an estate attorney or family member with questions about whether a capacity evaluation is appropriate, reach out at drgerdin@gerdinpsych.com or 509-676-4313.
Dr. Tyler Gerdin, PsyD, ABPP is a board certified clinical psychologist in Spokane, Washington, specializing in forensic psychological evaluation, psychological and neuropsychological assessment, and independent medical examinations.
References
American Bar Association Commission on Law and Aging & American Psychological Association. (2008). Assessment of older adults with diminished capacity: A handbook for psychologists.
Kenepp, A., Johnson, E., Lee, G. J., Sunderaraman, P., Denburg, N. L., & Nguyen, C. M. (2021). A comprehensive approach to assessment of testamentary capacity. Frontiers in Psychology, 12, 789494.
Roche, A. I. (2019). Testing for testamentary capacity in the older adult: A model of ethical considerations for the clinical neuropsychologist. Frontiers in Psychology, 10, 1905.
Shulman, K. I., Peisah, C., Jacoby, R., Heinik, J., & Finkel, S. (2009). Contemporaneous assessment of testamentary capacity. International Psychogeriatrics, 21, 433–439.
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