Forensic psychologists and neuropsychologists regularly give expert opinions about a person’s mental capacity in the criminal, family law and civil courts. The evaluative process involves clinical interviews, psychological/neuropsychological testing, review of the records and interviews with individuals who have personal knowledge of the defendant’s behavior and cognition.
However, when the case calls for an opinion regarding the mental capacity of a deceased person, the forensic psychologist/neuropsychologist cannot administer psychological tests or conduct a clinical interview. Consequently, the expert retained on a contested Will or Trust matter has to assemble information that yields a true picture of the pre-morbid personality and cognitive function of the decedent.
In this case, the forensic psychologist must take on an investigative role with individuals and family members. Information is gathered about the decedent’s cognitive, behavioral and decision-making behavior just prior to death, in the recent and distant past. Materials reviewed can include depositions as well as clinical, financial and medical records. Not surprisingly, nurse’s note can often contain very valuable information relating to a person’s emotional and mental states.
These sources may reveal whether a caretaker or significant other was involved in the daily decision making, health management or general care of the decedent. This information assists the expert in determining whether the caretaker or significant other unduly influenced the decedent when writing the Will and/or Trust, signing signature cards at a financial institution or requesting specific medical care such as Advanced Directives.
Comparing historical information with recent findings can yield a detailed picture of similarities and discrepancies in the decedent’s mental capacity over time. It can illuminate changes in habits, psychological and physical well-being, friendships, belief systems, self care and financial management. Noting the variation in these factors on a time line gives the forensic psychologist/neuropsychologist a method to determine if and when changes occurred in the decedent’s lifestyle and if any specific factors or people unduly influenced the decedent. These findings assist the attorney and/or the court in determining whether the decedent had sufficient understanding of the contents and consequences of the will, trust, contract or other signed document.