consulting with attorneys about clients with question-
able capacity, contemporaneous clinical evaluations
of TC prior to will execution, and retrospective evalu-
ations of TC in cases involving a now-deceased or
incompetent testator.Consultation Regarding TC
An attorney may choose to consult with a clinician prior
to, or instead of, seeking a formal clinical assessment. In
this situation, the clinician provides an informal opinion
regarding TC based solely on client observation and the
information provided by the attorney. The clinician may
also identify concerns or issues that the attorney may have
overlooked, as well as suggest strategies for enhancing
TC. Clinical consultation may assuage an attorney’s con-
cern regarding a client’s TC or justify pursuing a formal
clinical evaluation of TC.Contemporaneous
Clinical Evaluation of TC
In certain circumstances, the testator, a family mem-
ber, or his or her attorney may request that a clinician
assess the testator’s TC prior to will execution. Two
scenarios are common in such a referral. The attorney
may have concerns about TC and desire clinical
expertise and input on the issue before proceeding fur-
ther. Alternatively, in cases of ongoing or anticipated
family conflict, the attorney may seek to preempt a
future will contest by having an assessment of TC
conducted as part of the will execution.
Contemporaneous evaluations of TC are multifac-
eted and involve (a) collecting relevant data regard-
ing the testator’s assets, potential heirs, and general
cognitive and everyday functioning from collateral
sources (i.e., a spouse, other family members, and
friends); (b) conducting a comprehensive mental sta-
tus examination of the testator to identify cognitive
and psychiatric impairments that may interfere with
TC; and (c) completing a thorough clinical interview
of the testator to assess TC according to the above
legal criteria. Spar and Garb have proposed a valuable
semistructured interview approach that clinicians can
use to assess TC. Because the validity of a will is
dependent on the testator’s TC at the specific time that
the will is executed, clinicians should conduct evalua-
tions of TC as close to the time of will execution as
possible.Retrospective Evaluation of TC
Although contemporaneous assessment of TC is highly
desirable, retrospective evaluations probably repre-
sent the majority of these forensic assessments.
Retrospective evaluations arise after the death or
incompetency of a testator, when potential heirs or
other parties contest a will on the grounds that the tes-
tator lacked TC at the time the will was executed.
Retrospective evaluations of TC are based on a thor-
ough record review and information obtained from the
testator’s family, friends, business associates, and other
involved professionals (often through deposition testi-
mony). Primary attention is given to gathering evidence
of mental status and neurobehavioral and everyday
functional skills as close as possible to the date the will
was executed. Relevant personal records include the
testator’s business records, checkbook and other finan-
cial documents, and personal documents (e.g., letters,
diaries, family films, or videos). Medical records can
yield particularly useful information, including mental
status, behavioral observations, diagnosis, level of
impairment, dementia stage (if applicable), and psy-
chological test results. Clinicians may also find it ben-
eficial to interview the testator’s surviving family,
friends, business associates, and other involved profes-
sionals regarding the testator’s cognitive and functional
abilities at the time the will was executed.
Ultimately, the clinician must assemble all of this
information and retrospectively determine whether or
not the testator clinically had TC at the prior relevant
legal time point(s). In some cases, it may not be pos-
sible to render such a judgment if there is insufficient
evidence of the testator’s cognitive, emotional, and
functional abilities contemporaneous with the prior
will execution.
With respect to both contemporaneous and retro-
spective forensic evaluations of TC, it is important to
emphasize that the clinician’s opinions regarding TC
represent clinical judgments that the court may con-
sider and weigh in arriving at a dispositive legal judg-
ment of TC.Research on TC
TC as a civil competency represents a key knowledge
gap in forensic science. There is relatively little pub-
lished research on TC. Several good articles exist that
provide general clinical guidelines and tips for assess-
ment of TC and undue influence. However, there has800 ———Testamentary CapacityT-Cutler (Encyc)-45463.qxd 11/18/2007 12:44 PM Page 800