DEMENTIA, TESTAMENTARY CAPACITY AND UNDUE INFLUENCE DÉMENCE, CAPACITÉ TESTIMONIALE ET INFLUENCE INDUE

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1 To help anticipate To help live with dementia DEMENTIA, TESTAMENTARY CAPACITY AND UNDUE INFLUENCE DÉMENCE, CAPACITÉ TESTIMONIALE ET INFLUENCE INDUE Harold KASPRZAK Lawyer, Programme Assistant, Social Studies Department FONDATION MEDERIC ALZHEIMER Paris (France) 21 st Alzheimer Europe Conference "European Solidarity without borders" 8 th October Warsaw (Poland)

2 INTRODUCTION CONTEXT Testamentary capacity and undue influence are important issues in the context of dementia (Spar & Garb 1992) However, they did not receive much attention (Moye & Marson 2007) and there is a gap between case law and clinical research (Peisah et al. 2009) How to fill the gap between theory and practice? 2

3 INTRODUCTION 1. Brief review of international literature and case law 2.- A comparison of practices in Europe 3.- From theory to practice 3

4 LITERATURE AND CASE LAW REVIEW TESTAMENTARY CAPACITY Presomption of capacity (Redmond 1987) A situation-specific ability (Fountoulakis & Despos 2008) Need for specific assessment (Jacoby & Steer 2007) BANKS v. GOODFELLOW (1870) Understanding the meaning and effect of making a will Knowledge of the nature and extent of one s assets Claims of natural heirs Being free of mental disorders or delusions that influence the disposition of assets Cornerstone of testamentary capacity assessment 4

5 LITERATURE AND CASE LAW REVIEW UNDUE INFLUENCE A legal concept which lacks a clinical definition (Moye & Marson 2007) Difficulty to distinguish undue influence v. due influence (Gutheil 2007) WINGROVE v. WINGROVE (1885)... To be undue influence there must be a form of coercion An overpowering of the testator s volition, judgment or wishes Influence is relative to the vulnerability of the testator 5

6 A COMPARISON OF PRACTICES IN EUROPE RETROSPECTIVE CHALLENGE OF A WILL Dementia (40%) Undue influence is alleged (56%) Testator with no biological children (52%) Radical change from a previous will (72%) Will executed less than a year prior to death (48%) TYPICAL PROFILE Shulman and al The burden of proof is on the claimant Courts take into account every means at their disposal Retrospective challenge looks like a psychological autopsy (Noffsinger 2008) 6

7 A COMPARISON OF PRACTICES IN EUROPE CONTEMPORARY WILL S ASSESSMENT ALZHEIMER EUROPE Dementia in Europe Yearbook 2010 Similarities between countries Differences across countries 7

8 FROM THEORY TO PRACTICE THE NETHERLANDS KONINKLIJKE NOTARIËLE BEROEPSORGANISATIE Stappenplan Beoordeling Wilsbekwaamheid ten behoeve van notariële dienstverlening (2005) When assessing if a person is capable of making a will, notaries should consider the person s : Ability to understand - Could you reformulate in your own words what I told you about the will? Ability to appreciate - Why is it important to you to make a will? Ability to reason - What are the grounds of your choice? Ability to express a choice - Do you fully agree with the extent and wording of the will? 8

9 FROM THEORY TO PRACTICE INTERNATIONAL PSYCHOGERIATRIC ASSOCIATION TASK-FORCE ON WILLS AND UNDUE INFLUENCE International Psychogeriatrics (2009) RED FLAGS FOR UNDUE INFLUENCE the testator invests significant trust or confidence in another person isolation of the person impairment in vision, hearing or mobility impairs communication change in family dynamics or family conflict physical or psychological dependence on a carer beneficiary instigates or procures the will content of will is not in keeping with previous wishes A useful guidance for professionals 9

10 CONCLUSION Assessing testamentary capacity: a complex, cross disciplinary endeavour A need for shared and clear criteria A need for professionals to collaborate more actively 10

11 REFERENCES ALZHEIMER EUROPE (2010), Dementia in Europe Yearbook 2010 BRITISH GERIATRICS SOCIETY (2006), Guidelines on Capacity and Testamentary Capacity. BRITISH MEDICAL ASSOCIATION, Assessment of Mental Capacity- a practical guide for Doctors & Lawyers KONINKLIJKE NOTARIËLE BEROEPSORGANISATIE (2005), Stappenplan Beoordeling Wilsbekwaamheid ten behoeve van notariële dienstverlening. CHURCH M & WATTS S (2007), Assessment of mental capacity: a flow chart guide, psychiatric bulletin 31: COLLINS E (2002), Taking instructions from the Elderly Client and Testamentary Capacity GUTHEIL T (2007), Common Pitfalls in the Evaluation of Testamentary Capacity, MD, The journal of American Academy of Psychiatry and the Law 35: JACOBY R & STEER P (2007) How to assess capacity to make a will, BMJ, vol 335 NOFFSINGER S (2008), Evaluating Capacity to Make a Will, Psychological Autopsy and Assessment of testamentary capacity, Psychiatric times, Vol 25 (14) MOYE J & MARSON D (2007), Assessment of Decision-Making Capacity in Older Adults: An Emerging Area of Practice and Research. Journal of Gerontology Psychological Sciences, Vol 62B (1:3) PEISAH C et Al (2009), The wills of older people: risk factors for undue influence, International Psychogeriatric. REDMOND (1987), Testamentary capacity, Bull Am Acad Psychiatry Law, Vol. 15 (3) SHULMAN K, COHEN C and HULL I (2007), Psychiatric issues in retrospective challenges of testamentary capacity, International Journal of Geriatric Psychiatry SPAR J & GARB A (1992), Assessing Competency to Make a Will, American J Psychiatry GORMAN WF (1996), Testamentary capacity in Alzheimer s disease 11

12 Thank you Merci for your attention de votre attention Harold KASPRZAK