Topical Issues in Contemporaneous Assessment of Testamentary Capacity

Contemporaneous assessment of testamentary capacity (TC) is a well-established professional activity for forensic clinicians. However, important assessment issues exist in this area that remain unsettled or controversial. Three topical TC assessment issues were identified from a review of forensic literature and the author’s personal experience as an expert witness: (1) whether neuropsychological testing is a necessary component in contemporaneous forensic assessments of TC, (2) whether clinicians are able to conduct contemporaneous assessments of TC in patients with aphasia, and (3) whether clinicians should video record their TC assessments. The paper presents each issue and related literature, provides views of the field (where available), offers the author’s viewpoint and conclusions, and makes recommendations for future research. The paper concludes that (1) neuropsychological assessment currently is a very helpful addition but not a required component of the contemporaneous assessment of TC, but may become essential with the advent of TC-specific neuropsychological measures; (2) contemporaneous assessment of TC is feasible in patients with mild aphasia, but becomes increasingly challenging and problematic in patients with more severe aphasia; and (3) whether to video record a TC assessment is an attorney and not a clinician decision.