A Case for the Standardized Assessment of Testamentary Capacity

Megan Brenkel, Kimberley Whaley, Nathan Herrmann, Kerri Crawford, Elias Hazan, Laura Cardiff, Adrian M. Owen, Kenneth Shulman



With an increasingly aged, frail population that holds a disproportionate amount of wealth, clinicians (especially those with expertise in older adults) may be asked with more frequency to offer a clinical opinion on testamentary capacity (TC), the mental capacity to make a will.


This paper reviews the legal criteria as well as the empirical research on assessment tools for determining testamentary capacity (TC). We also review the relevance of instruments used for the assessment of other decisional capacities in order to evince the potential value of developing a standardized assessment of TC for clinician experts.


The legal criteria, often referred to as a “test”, for determining requisite TC (Banks v. Goodfellow) have remained much the same since 1870 with minimal clinical input and, as such, there has been little development in TC assessment instruments. Decisional instruments designed to assess Consent to Treatment may have relevance for TC.


We make the case for a semi-structured interview that includes standardized criteria for the legal test for TC, supplemented by a validated brief neuropsychological assessment, which together comprise a Contemporaneous Assessment Instrument (CAI) for TC.


testamentary capacity; capacity assessment; medico-legal interface; will challenges; Contemporaneous Assessment Instrument (CAI)

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DOI: https://doi.org/10.5770/cgj.21.283


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ISSN: 1925-8348 (Online)