'Evaluation of testamentary capacity: A systematic review'

OBJECTIVE

To systematically review the literature on methods for the standardized and objective assessment of Testamentary Capacity (TC), to identify the best evidence-based and clinically pragmatic method to assess TC. Doubts concerning TC can have far-reaching legal and financial implications.

METHOD

A systematic search of the literature was conducted, using PRISMA guidelines, to identify studies which describe methods or tools for the assessment of TC.

RESULTS

The Testamentary Definition Scale (TDS); the Testamentary Capacity Assessment Tool (TCAT); and the Testamentary Capacity Instrument (TCI) all have good psychometric properties, but TDS only partially assesses TC, and the TCI is designed for research rather than day-to-day clinical practice.

CONCLUSION

The TCAT could usefully supplement the clinical assessment of TC, coupled with a standardized examination of cognition. There is room to develop an all-encompassing TC assessment tool. Currently, the clinical judgement of a medical professional, taking account of the medical, legal, ethical issues informing a capacity or competency decision, remains the gold standard for assessing TC.

Cognitive Correlates of Impaired Testamentary Capacity in Alzheimer's Dementia

BACKGROUND

Testamentary capacity (TC) is a legal construct about the ability to make or change a will. Although studies of financial and medical capacities have noted a strong association between capacity and cognition, no study has examined the cognitive correlates of TC in Alzheimer's disease (ad).

METHODS

Study participants were 22 cognitively healthy controls and 20 persons with mild to moderate ad who were administered a neuropsychological battery and the Testamentary Capacity Instrument (TCI), a new performance-based measure of TC. Both TCI Element and TCI Total scores were calculated. TCI Total scores were calculated for the purposes of expanding correlational analyses (i.e., Pearson's product-moment) and are not intended for forensic TC evaluations. Final predictors were identified using linear and logistic regression modeling.

RESULTS

All ad participants but one obtained TCI Totals that fell >2.5 standard deviations below the control group mean. Initial cognitive correlates of TCI performance were measures of general cognition, language, verbal memory, executive function, and processing speed. The four cognitive variables showing the highest t values and correlating with TCI Total score > 0.7 were entered into logistic and linear regression models. Final predictor models consisted of measures of verbal memory, executive function, and semantic knowledge and demonstrated shared variance of 0.71 (linear) and 0.82 (logistic).

CONCLUSIONS

A diagnosis of ad dementia is associated with clinical impairment in TC and associated cognitive abilities and indicates that a legal assessment of TC is warranted. Second, the results offer insight into the cognitive basis of TC in persons with Alzheimer's dementia.

Assessment of Testamentary Capacity in Older Adults: Description and Initial Validation of a Standardized Interview Instrument

OBJECTIVE

Testamentary capacity (TC) is a legal construct, which concerns a person's mental capacity to make or amend a will. Although expert clinicians are frequently asked to assess TC in forensic settings, there are few instruments and little empirical research to inform and guide their assessments. The present study describes the development and psychometric properties of a standardized assessment measure of TC (Testamentary Capacity Instrument-TCI), and investigates its reliability and validity.

METHODS

The TCI is an interview-based, psychometric measure, which assesses a testator's knowledge of four conceptual elements, which together comprise the legal basis for TC in the Anglo-American legal system: (1) what a will is, (2) nature and extent of assets/property, (3) possible heirs/claimants to property, and (4) plan to distribute assets to heirs after death. Cronbach's alpha and percentage exact agreement were used to examine TCI element reliabilities. Using independent samples t-tests, MANOVA and MANCOVA, we investigated validity by comparing TCI element performance of cognitively intact older adults (n = 22) and older adults with ad dementia (n = 20).

RESULTS

The TCI elements showed good internal consistency and good inter-rater reliability. The ad group performed significantly below the control group on all four TCI elements, with effect sizes exceeding 1.2, suggesting that the TCI has content and construct validity.

CONCLUSIONS

Relative to cognitively intact older adults, older adults with ad dementia showed significant impairment on all four TCI conceptual elements. The TCI has promise as a standardized quantitative measure of TC to support clinical assessment of TC in forensic settings.

The Testamentary Capacity Assessment Tool (TCAT): validation and normative data

BACKGROUND

There is an increasing need for objective and standardized assessment of testamentary capacity (TC) in dementia. A new instrument, the Testamentary Capacity Assessment Tool (TCAT), has been recently developed; however, the lack of validation and normative data regarding this cognitive screening test has limited its adoption in forensic and clinical settings. The present study collects normative data for the TCAT and assesses its convergent validity with standardized cognitive tests and the capacity to define what a 'testament' is.

METHODS

The study involved 323 neurologically healthy adults (123 males, 200 females) of different ages (31-93 years) and different educational levels (4-25 years). The TCAT was administered along with the Beck Depression Inventory-II (BDI-II), the Montreal Cognitive Assessment (MoCA), the Mini-Mental State Examination (MMSE), the Frontal Assessment Battery (FAB) and the Testament Definition Scale (TDS).

RESULTS

Multiple regression analyses revealed a significant effect for gender, age and education on TCAT scores. Correlation analyses showed significant associations between the TCAT and the MMSE, MoCA, FAB and BDI-II. A positive correlation between the TCAT and TDS was also found, proving good convergent validity of the TCAT with respect to TC. Finally, cut-off scores and Equivalent Scores (ES) were computed.

DISCUSSION

The present study provides normative data for using the TCAT as an adjuvant cognitive screening test in the neuropsychological evaluation of TC. Our findings shall be of interest for the adoption of the TCAT also in clinical practice, since it evaluates cognitive functions (e.g., autobiographic memory, Theory of Mind) not measured by traditional screening tests.

Mapping dementia and cognitive decline in testamentary capacity

Cognitive assessment is central to the evaluation of testamentary capacity. Such assessment is currently performed in a subjective, unreliable and non-standardized manner. Dementia, a cognitive illness, poses one of the largest threats to testamentary capacity in modern society. A better understanding of the ways in which dementia related cognitive impairment can affect a testator's ability to meet the relevant legal criteria to make a will is needed. A review of the literature over the past ten years focusing on what cognitive abilities are required to satisfy the legal criteria for testamentary capacity has highlighted an alarming scarcity of work in this area. There is little discussion spanning beyond general acknowledgement of the importance of memory and executive function. The specifics of how cognitive impairment impacts the four limbs of Banks v Goodfellow are rarely addressed. Several additional areas of cognitive function of importance to assessing testamentary capacity are the subject of this article.

Will-making in Irish nursing homes: Staff perspectives on testamentary capacity and undue influence

Allegations of lack of testamentary capacity or of undue influence are grounds for many disputed wills. Some people who make (or change an existing) will are resident in a nursing home. A substantial proportion of this population have cognitive or communication difficulties or are physically frail, and concerns regarding testamentary capacity or undue influence may be more likely to arise as a result. A questionnaire examining the experiences and views of staff regarding will-making by nursing home residents was posted to the Directors of Nursing of a random sample of 148 of the approximately 600 nursing homes in the Republic of Ireland and 81 responded. Over 10% of respondents reported seeing cases where they felt a resident who lacked capacity was visited by a solicitor or where a resident was placed under undue pressure to make or change a will or both. In most such cases, staff felt they could do little to intervene. In general, responses to the questionnaire suggested staff misunderstanding of the confidential nature of the relationship between a solicitor and a client and that respondents had an exaggerated view of the power and responsibility of doctors and of family members to influence residents' decisions and interactions with solicitors regarding will-making. This study suggests the need for improved Guidelines for staff regarding will-making in residential care including advice on how to proceed where concerns including undue pressure arise.

Uncertain testamentary capacity

This letter illustrates the significance of the legal rules that resolve uncertainty in assessments of testamentary capacity.