Kenneth Shulman1, Nathan Herrmann1, Hayley Peglar2, Daniel Dochylo3, Clare Burns2, Carmelle Peisah4,5,6. 1. Department of Psychiatry, 71545Sunnybrook Health Sciences Centre, University of Toronto, Ontario, Canada. 2. 7971Weir Foulds LLP, Toronto, Ontario, Canada. 3. 33490Borden Ladner Gervais LLP, Toronto, Ontario, Canada. 4. 7800University New South Wales, Kensington, New South Wales, Australia. 5. Sydney University, New South Wales, Australia. 6. Capacity Australia, Kensington, New South Wales, Australia.
Abstract
OBJECTIVES: Physicians and other mental health experts are increasingly called on to assist the courts with the determination of testamentary capacity. We aim to improve the understanding of the retrospective assessment of testamentary capacity for medical experts in order to provide more useful reports for the court's determinations and to provide a methodology for the retrospective assessment of testamentary capacity. METHOD: Medical experts with experience in the retrospective assessment of testamentary capacity collaborated with lawyers who practice estate litigation. The medical literature on the assessment of testamentary capacity was reviewed and integrated. The medical experts provided a clinical perspective, while the lawyers ensured that the case law and legal perspective were integrated into this review. RESULTS: The focus and limitations of the medical expert are outlined including the need to be objective, nonpartisan, and fair. For the benefit of the court, the medical expert should describe the nature and severity of relevant medical, psychiatric, and cognitive disorders, and how they may impact on the specific criteria for testamentary capacity as defined by the leading case of Banks v Goodfellow. Medical experts should opine only on the issue of vulnerability to influence and defer to the court to determine the facts of the case regarding any influence that may have been exerted. CONCLUSIONS: Although the ultimate determination of testamentary capacity is a legal one, medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the criteria for testamentary capacity.
OBJECTIVES: Physicians and other mental health experts are increasingly called on to assist the courts with the determination of testamentary capacity. We aim to improve the understanding of the retrospective assessment of testamentary capacity for medical experts in order to provide more useful reports for the court's determinations and to provide a methodology for the retrospective assessment of testamentary capacity. METHOD: Medical experts with experience in the retrospective assessment of testamentary capacity collaborated with lawyers who practice estate litigation. The medical literature on the assessment of testamentary capacity was reviewed and integrated. The medical experts provided a clinical perspective, while the lawyers ensured that the case law and legal perspective were integrated into this review. RESULTS: The focus and limitations of the medical expert are outlined including the need to be objective, nonpartisan, and fair. For the benefit of the court, the medical expert should describe the nature and severity of relevant medical, psychiatric, and cognitive disorders, and how they may impact on the specific criteria for testamentary capacity as defined by the leading case of Banks v Goodfellow. Medical experts should opine only on the issue of vulnerability to influence and defer to the court to determine the facts of the case regarding any influence that may have been exerted. CONCLUSIONS: Although the ultimate determination of testamentary capacity is a legal one, medical experts can help the court achieve the most informed legal decision by providing relevant information on clinical issues that may impact the criteria for testamentary capacity.
Authors: Eneida Mioshi; Kate Dawson; Joanna Mitchell; Robert Arnold; John R Hodges Journal: Int J Geriatr Psychiatry Date: 2006-11 Impact factor: 3.485
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