A Blueprint for Testamentary Capacity Reform

Abstract:     
This article presents a proposal to reform testamentary capacity law in order to facilitate the right of individuals to will property as they choose while protecting family members from the possibility of disinheritance due to the testator's defective understanding of a will or its consequences. Approaching the problem from a perspective that integrates considerations of testamentary capacity policy, doctrine and procedure, the article argues that testamentary capacity case law reflects a bifurcated standard that probate procedure ought to facilitate by allowing testators alternative means of satisfying the testamentary capacity standard. The centerpiece of the proposal is the introduction of an option to validate a testator's capacity during her lifetime through use of a forensic assessment instrument that measures the cognitive elements of testamentary capacity. This brings to the law of wills, which has struggled for more than a century with the question of how to measure testamentary capacity effectively, an idea that the law and psychology movement has successfully introduced into several other areas of law in recent years.

Keywords: wills, capacity, mental capacity, testamentary capacity, forensic assessment, probate

Accepted Paper Series