Reflections on changes in defining testamentary capacity

Reflections on changes in defining testamentary capacity Old age psychiatrists are often called upon to give expert evidence in challenges of testamentary capacity. The nineteenth-century English case, Banks v. Goodfellow (1870) remains the hallmark case for defining the criteria for testamentary capacity in Australia and other Common Law countries. However, a need to go beyond the traditional Banks and Goodfellow criteria for defining testamentary capacity (i.e. (i) understanding of the nature of a will; (ii) knowledge of the nature and extent of one’s assets; (iii) being able to recall and understand the claims of potential heirs; (iv) being free of delusions or hallucinations that influence one’s testamentary decisions) has been identified recently in the international literature (Shulman et al., 2005). Recent court rulings in Australia which have acknowledged the differences between the nineteenth-century context and today are therefore of international interest, as are recently adapted guidelines for clinicians asked to assess capacity. Importantly, Banks and Goodfellow was based on a case of psychosis, which these days is far outnumbered by dementia as the basis for will challenges (Shulman et al., 2005). Further, the expectations of testators in 19th century England and our understanding of psychopathology and cognition have obviously evolved. This has had most impact on the criteria for knowledge of the nature and extent of assets (the threshold for which has been lowered) and for recalling and understanding the claims of potential heirs (the threshold for which has risen). With regards to the former, a recent Australian case (Kerr v. Badran, 2004) has openly acknowledged the differences between 1870 and today: