Testamentary Capacity: History, Physicians’ Role, Requirements, and Why Wills Are Challenged
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Testamentary capacity, the ability to make a will, is a legal issue that physicians are frequently, either directly or indirectly (eg, records), involved with. Approximately 3% of all wills will be challenged, with about 1% being found invalid.1,2 Often, when a will is challenged, the individual’s estate remains in probate for years, incurring expenses and causing hardships and frustrations for families and friends.3
In the United States, legal challenges to wills became common during the mid-1800s for three reasons.1 The first reason was because a larger percentage of the population was beginning to acquire wealth, resulting in more legal challenges over issues of inheritance. The second was because of “new” medical and legal theories regarding insanity and mental illness, which were espoused by individuals such as Isaac Ray, MD, in A Treatise on the Medical Jurisprudence of Insanity (1838).1 The third was legal ambiguity regarding what constituted a sound mind. Benjamin Rush, MD, one of the founding figures in American psychiatry and a signer of the Declaration of Independence, wrote, “There are instances in which madmen talk rationally, but write incoherently.” Because of Rush’s influence, this concept of ambiguity became the basis for breaking a will when no clear evidence of insanity was present except for an upset heir.1
The frequency with which wills are challenged is expected to increase during the 21st century for a multitude of reasons, some of which are similar to factors that occurred in the 1800s.4-8 Before the recent financial troubles, it had been estimated that $41 trillion of wealth would be transferred before 2050 by means of inheritance.3 Legal and medical systems are again having to fine-tune legal concepts, which are being strained by the fact that individuals are living longer and, therefore, are more likely to experience symptoms of dementia around the time wills are written or the individual dies.8-10 Recent figures indicate that 4.5 million persons in the United States have Alzheimer’s disease (just one of many causes of dementia), twice as many as in 1980, and this increasing trend is expected to continue.11 Typical family structures have become more complicated since the 1800s (eg, stepchildren, frequency of divorce, family members living in different legal jurisdictions), resulting in more people laying claims to and challenging inheritances.4-6
Unfortunately, most doctors, even those who primarily see patients of advanced years, are not knowledgeable about key issues surrounding testamentary capacity. A study in 2002 found that only 7% of general practitioners, psychiatrists, geriatricians, and medical students near completion of their training could answer basic questions regarding testamentary capacity.12 A physician’s lack of knowledge concerning testamentary capacity serves our patients poorly (Table I). We must be knowledgeable if we are to help our patients when they seek our advice about issues such as making wills, initiating advance directives, defining health surrogates, and other legal matters related to healthcare and death. In addition, if there is a legal challenge to a will, our medical records are likely to become key documents in subsequent legal actions and should address expected key issues and facts.
Brief History of Testamentary Law
All societies, whether through religious practice or some form of governmental decree, have a system to determine inheritance. This article will focus on Roman and English law since they are the primary basis for many of the current laws in the United States.1,13
Early Roman law developed a system whereby a person’s guardianship and control of his or her property was determined by his or her paternal relatives.
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