Testamentary capacity ppt

brief , easy to learn

1. TESTAMENTARY CAPACITY By DR.SURESH 1 ST PG PSYCHIATRY 1/29

2. OUT LINES INTRODUCTION DEFINITION IMPORTANT ELEMENTS FACTORS AFFECTING SYMPTOMS ASSESSMENT DOCUMENTATION FOR ASSESSMENT 2 /29

3. INTRODUCTION Definition of a Will A will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death. After the death of a person, his property devolves in two ways : According to the respective laws of the land when no will is made – i.e. intestate By way of will – i.e. testamentary 3 /29

4. Acts operating in India The I ndian succession Act 1925 The Indian succession Act (Amendment) 2005 The Muslim personal laws The Indian registration Act 1908 Various states of I ndia have their own amendments of Hindu succession Act 1956, according to the local customs. 4 /29

5. If a H indu male passes away : Hindu female shares equally with the male The wife as well as the mother also gets the equal share There is nothing to prevent a Hindu male from bequeathing his entire property to a stranger if he so desires. 5 /29

6. Muslim male cannot will away more than 1/3 of estate and 2/3 of the property must be divided among the family members in the shares as laid down in the law. A M uslim wife cannot be dispossessed. Even though she shares with other wives ( if more than one wife). The widow gets a definite share. The male heirs , sons get twice the share of daughters. 6 /29

7. TESTAMENTARY CAPACITY DEFINITION Capacity refers to Person’s full sense and sanity to have confirmed and signed the will after understanding what his assets comprised and what he is doing by making a will . He understands in full mental capacity who he is naming the assets to and how are they related to him and what repercussion it may have later. 7 /29

8. Example case. John Banks , the testator clearly suffered from a chronic serious mental disorder but was deemed capable with respect to the execution of his will because his delusions did not affect the distribution of his assets. This judgment remains the test in most common law jurisdictions today. 8

9. THE BANKS V . GOODFELLOW CRITERIA Understanding of the nature of the act (will making) and its effects. Knowledge of the nature and extent of one’s assets. Knowledge of persons who have a reasonable claim to be beneficiaries. 9

10. Understanding of the impact of the distribution of the assets of the estate . A confirmation that the testator is free of any delusions that influence the disposition of the assets. Ability to express wishes clearly and consistently in an orderly plan of disposition. 10

11. IMPORTANT ELEMENTS IN TESTAMENTARY CAPACITY It is a voluntary act on the part of the testator : No compulsion only own decision. The testator should have a sound disposing mind : should not be suffering from any mental disorder , should not be in the state of intoxication The testator should know what he is doing by making a will 11 /29

12. Continue.. 4. The testator should have sufficient capacity to know the extent of property : should know nature, extent and approximate value of his property 5. The testator should be aware of the potential beneficiary : know about the legal heirs 6. The testator should be aware of the consequences of his decision 7. The testator should be free from undue influence/fraud/coercion 8. The testator must have the knowledge of the contents of the will 12 /29

13. FACTORS AFFECTING TESTAMENTARY CAPACITY 1. PHYSICAL FACTORS : Medical disorders, including head trauma, systemic diseases i.e. metabolic , endocrinal, infectious and drugs that affect brain functioning and mental state. Alcohol : Both acute and chronic abuse effects on cognition, judgment, behavior, perception and impulsiveness. 13 /29

14. 2. PSYCHIATRIC DISORDERS DEMENTIA : Such as alzheimers disease , lewy body dementia and vascular cognitive impairment are characterized by diffuse cognitive deficits. In dementia, executive impairment is particularly important , as it can affect insight, perception and judgment and impulse control 14 /29

15. MOOD DISORDERS : Including depression and bipolar disorder , may produce cognitive distortions (delusions), compromise judgment and cause irritability. DELUSIONS : Paranoid delusions such as in schizophrenia, delusional disorders. Other forms of neurological diseases , such as dementia, delirium, acquired brain injury and other brain lesions. 15 /29

16. 3. UNDUE INFLUENCE The opportunity of the beneficiary of the influenced bequest to mould the mind of the testator to suit his/her purpose. 16 /29

17. Indications of undue influence : A confidential relationship existed between testator and the influencer. The influencer used the relationship to secure a change in the distribution. The change in distribution did not reflect the true wishes of the testator. The testator was vulnerable to being influenced either because of a neurological or psychiatric disorders. The beneficiary actively participated in the procurement of the will. There was undue benefit to the beneficiary. 17 /29

18. Behavioral clues to undue influence : Someone other than the testator (or his lawyer) makes the appointment for the evaluation The person transporting the testator to the appointment is reluctant to permit him to be interviewed privately. Details of the will are absent or the testator appears vague about specific items in the will. The testator is hesitant about providing information about the potential heir and his relationship to that person. 18 /29

19. SYMPTOMS OF TESTAMENTARY CAPACITY THE FOLLOWING SYMPTOMS ARE THE POTENTIAL SIGNS OF INCAPACITY TO MAKE A WILL Difficulties in attention and information processing Language difficulties Memory difficulties Impairment of higher executive functions 19 /29

20. Persecutory delusions about a family member causing testator to exclude the person from the will Delusions of poverty – the testator does not realize the worth of his estate which may influence his distribution of property. 20 /29

21. ASSESSMENT OF TESTAMENTARY CAPACITY At the time of drafting the will , lawyers make an initial assessment of testamentary capacity but may call upon expert to assist in specific circumstances Those experts are neuro -psychiatrists, geriatric psychiatrists , neuro -psychologists. Expert role involves in conformation of testamentary capacity and assessment of the potential role of undue influence 21 /29

22. PROCESS FOR ASSESSMENT Get a letter from the solicitor detailing legal tests. Set aside enough time for evaluation. Examine at least two separate consultations 1) prior to the lawyer taking the instructions from the testator. 2)prior to the execution of the complete will. -The second consultation should be ideally on the day testator executes the will. 22 /29

23. Assess whether the client has dementia in the standard way : - thorough physical and neurological examination. -Psychiatric examination for delusions, hallucinations ,thought disorders ,mood states , cognitive functions. Record the answers verbatim. Check facts such as extent of assets, with the solicitor . 23 /29

24. Ask about and review previous will. Ask why potential beneficiaries are included or excluded. If in doubt about mental capacity seek second opinion. 24 /29

25. COMMON COGNITIVE SCREENING TESTS Clinicians and legal experts must understand that cognitive tests are not diagnostic of dementia and can be used as a measure of capacity. Mini Mental State Examination (MMSE) CLOCK-DRAWING TEST. 25 /29

26. MMSE Most commonly used cognitive screening test in the world. Total possible score is 30. Below 26 suggests impairment Orientation to time (5) Orientation to place (5) Registration of 3 words (3) Attention and calculation (5) Recall of 3 words (3) Language (8) Visuo -spatial ability (1) 26 /29

27. Limitations of MMSE : it does not test specifically for frontal lobe or executive brain functions. The score alone is not necessarily a reflection of dementia or clinically significant cognitive impairment. 27 /29

28. CLOCK DRAWING TEST This is a widely used cognitive screening instrument . It consists a standardized circle with the instructions. This is a clock face; please put in the numbers so that it looks like a clock. The patient is then instructed to set the time to 10 past 11. 28 /29

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30. DOCUMENTATION Rational for making any changes in previous will. Appreciation of consequences and impact Clarification of concerns about potential beneficiaries Evidence of presence of specific neurological or mental disorders that may affect cognition , judgment. Evidence of psychiatric symptoms at the time of execution of will. 30 /29

31. Testator’s understanding and appreciation of any conflicts or tensions in his environment. Evidence of pathological or dependent relationships with a formal or informal caregivers. Evidence of inconsistencies in expression or inability to communicate clearly. Any indication of undue influence. 31 /29

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33. Where there is a will , there is a law suit. THANK YOU 33 /29