Encyclopedia of Psychology and Law

ground that it was the product of undue influenceon the

testator exerted by a family member or a third party.

As TC represents a legal construct closely associ-

ated with the testator’s mental status, clinicians are

often asked to evaluate TC and offer clinical testimony

in legal proceedings. Such evaluations are sometimes

conducted contemporaneously with a will’s execution

but more often occur retrospectively following the

incapacity or death of a testator and probating of the

will. In recent years, there has been an increase in will

contests in the probate courts, with associated claims

of impaired TC and also undue influence.

There is currently relatively little literature on TC.

Several papers addressing the general clinical guide-

lines for assessing TC and undue influence exist.

However, there is a great need for conceptual and

empirical work in this area.

Legal Elements of TC

Although the requirements for TC vary across states,

four criteria must generally be met. A testator must

have (a) knowledge of what a will is, (b) knowledge of

the class of individuals that represents the testator’s

potential heirs (“natural objects of one’s bounty”),

(c) knowledge of the nature and extent of his or her

assets, and (d) a general plan of distribution of assets

to his or her heirs.

The absence of one or more of these elements can

serve as grounds for a court to invalidate a will due to

lack of TC. However, the way in which courts weigh

the legal elements of TC in determining the validity of

a will varies across states. Some states require that the

testator meet only one of the criteria for a will to be

valid. Other states require that the testator not only

must understand a will and demonstrate memory of all

property and potential heirs but also must hold this

information in mind while developing a plan for dis-

position of assets. Accordingly, the reader is strongly

encouraged to review the relevant law on TC specific

to his or her state jurisdiction.

Insane Delusion and TC

Even when the legal elements of TC are present, a will

can fail due to an insane delusion. Specifically, some

states require that the testator be free of delusions and

hallucinations that result in the testator devising prop-

erty in a way that he or she would not have done in the

absence of the delusions and hallucinations. A psychi-

atric disorder with delusions and other symptomatology

is not by itself sufficient to invalidate the will. It must be

shown that the delusion specifically and materially

affected the testator’s creation or amendment of a will.

In other words, the will must be the direct product of the

insane delusion.

Undue Influence

A will can also fail on the separate ground that it was

the product of undue influence. Although undue influ-

ence is conceptually distinct from TC, these two legal

issues very often co-occur and intertwine when wills

are contested. Under the law, undue influence exists in

those situations where the will is the product of manip-

ulation, persuasion, or coercion exerted by the “influ-

encer” (e.g., family member, friend, neighbor, caregiver)

and is not truly the volitional act of the testator. It com-

monly occurs in relationships where the testator has a

special trust in or reliance on the influencer and where

dependency has been increased through the influencer’s

use of isolation and manipulation. In some instances,

the testator may be subjected to explicit threats and

intimidation by the influencer. Conceptually, undue

influence assumes some preserved level of TC in the

testator, which, however, is supplanted by the wishes

and actions of the influencer. For this reason, undue

influence should be considered conceptually distinct

from TC, albeit closely linked to it. Clinicians need to

understand both TC and undue influence when con-

ducting evaluations in this area.

Attorney Observations of TC

Typically, issues of TC may first arise in the context of

a testator’s interactions with his or her attorney. During

the course of the client interview, an attorney may

observe signs of diminished TC, such as an inability to

recall the names of family members or to appreciate the

full value of different assets. Variability in a client’s

state of mind and a lack of consistency between the

client’s current choices and his or her long-term values

and previously stated wishes can also raise red flags.

From a professional standpoint, attorneys must be sen-

sitive to indicators of diminished TC in their clients

and, where necessary, take steps to protect their client’s

best interests. In many instances, this may involve seek-

ing consultation from a clinician.

Clinical consultation regarding TC can substan-

tially inform the way in which attorneys and judges

understand and determine the legal issues of TC. The

role of clinicians in cases of TC includes informal

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