Competency in Testamentary and Financial Decisions

A question of competency to invest or to draft a will invariably is raised with significant changes in a person’s health, and increasing age of the testatrix. With medical progress enhancing longevity, a person may warrant evaluation on several occasions. For example, a will drafted at age 80 may be supplanted by a will drafted at age 88.

Dementia does not necessarily preclude testamentary capacity. As in criminal cases, competency is task specific. One may have Alzheimer’s disease, and be perfectly competent to decline a CT Scan, for example, but not competent to draft a will. The understanding required for competency to draft a will is different from those required for competency to invest, or to sign a contract. The testatrix need demonstrate only an understanding of the nature of the assets of the estate, and the natural heirs, to establish competency to draft a will.

Along with resolving an examinee’s testamentary capacity, a responsible forensic psychiatrist observes for signs of undue influence by a concerned party that exploits an emotionally vulnerable individual who might otherwise be cognitively intact. The testamentary capacity case is most frequently referred posthumously, when an aggrieved heir contests the will entered into probate. For this reason, the forensic psychiatrist studies the testatrix’ cognition through videotape record of the drafting of the will, or by reviewing email, letters and other records.

Review of medical records and antecedents to decisions, as well as correspondence with financial institutions, are likewise the focal points of forensic examinations of competency to invest. Securities laws are very protective of the incapacitated investor, and transactions can be negated, to the liability of the investment house, if the appointed arbitration panel finds the investor was incapacitated when executing a trade.

Due to the financial stakes at risk in cases involving testamentary and financial decisions, a forensic psychiatrist must be especially scrupulous in the investigation of competency. As nuances often attach themselves to competency disputes, The Forensic Panel’s experts tailor their forensic evaluations to the individual facts of each case, rather than formulaic assessment.

The Forensic Panel’s world-class psychiatrists have the experience, sophistication, and integrity necessary to tease out infirmity from incapacity. They do more than detect signs of deterioration; the methodology of The Forensic Panel delineates their relevance, in time and impact, to the transaction in question.

Contentious matters such as testamentary capacity and competency to invest benefit from the accountability that The Forensic Panel’s peer review provides. Such oversight identifies sources of information uniquely relevant to decision making and important transactions, and the lines of inquiry with which they should be engaged. Furthermore, peer review ensures that when an investor or testatrix who would provide information has passed away, only forensic opinions for which there is a foundation of fact or evidence are rendered.