Columbia Center for Occupational and Forensic Psychiatry - Washington, D.C. - Dr. David J. Fischer, M.D. Medical Director

COLUMBIA CENTER FOR
OCCUPATIONAL & FORENSIC PSYCHIATRY

DAVID J. FISCHER, MD MEDICAL DIRECTOR

PHONE: 202-363-4333
PHONE: 202-686-0114
 

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TESTAMENTARY CAPACITY

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TESTAMENTARY CAPACITY = SOUND MIND

Testator must have the ability to know and understand the following:

  • They are making a will
  • Testamentary Capacity - Sound Mind - Last Will and TestamentThe objects of their bounty and claims upon them
    • Blood relatives, close friends, occasionally faithful servants
  • The general nature and extent of their property
    • A reasonable approximation of the overall worth.

WILL CONTESTS

  • Less than 3% of wills are contested
  • Only 15% of these are successful
  • Presumption of testamentary capacity
  • Party alleging deficiency
  • Generally requires clear & convincing evidence
  • If the testator was adjudicated incompetent
  • Can still have a valid will but the burden of proof shifts to the proponent of the will to establish by clear and convincing evidence that the will was made during a Lucid Interval ( In Re Coe’s Will 1900)

WILL CONTEST

Being psychotic does NOT invalidate a will, nor does suicide.

TWO BASIC REASONS FOR INVALIDATING A WILL

  1. INSANE DELUSIONS
    • if the will is the PRODUCT of a delusional belief
      • Spouse having an affair
      • My children are really Martians
  2. UNDUE INFLUENCE
    • Manipulation or deception in engaging the affections of the testator, significantly impairing the ability of the testator to freely decide on the distribution of his property
    • The result of concealed action difficult to prove
    • The courts look for evidence of “coercion, compulsion, or restraint” which led to a will that does not reflect the desires of the testator.

TYPES OF GUARDIANSHIP

  • TESTAMENTARY GUARDIANSHIP
    Is appointed for a child by will and probated by the Court. A parent can appoint a guardian for their child. The guardian has the responsibility for the child and the child’s estate until the child has attained legal maturity age.
  • GUARDIAN AD LITEM
    Represents a person’s interests in a single judicial action. A temporary guardian appointed by the court to defend the interests of a minor or an incompetent person in a litigation- usually a lawyer. Is responsible only for decisions on behalf of the ward that pertain to legal proceedings.

LIMITED GUARDIAN OR CONSERVATOR

  • A guardian who has a power limited to managing the ward’s FINANCIAL AFFAIRS.

GENERAL GUARDIAN OR COMMITTEE

  • Appointed by court with broad power over BOTH the PERSON & the ESTATE of the ward.



 
 
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