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What is the Role of Forensic Psychiatry and Neuropsychology in Probate Litigation (Will Contests) Including Allegations of Lack of Testamentary Capacity and/or Undue Influence?

Forensic psychiatrists and neuropsychologists have an important role in probate law, both during the phase of estate planning, as well as in the circumstances in which the Will or Trust of a decedent is contested through litigation. These professionals can help determine the testamentary capacity of the person creating a will, and also help determine whether undue influence was exerted by family members, legal counsel, or others.

A forensic psychiatrist and neuropsychologist are often called upon before and after wills are made. A forensic psychiatrist and neuropsychologist are often called upon when wills are being drafted, to assess the testamentary capacity of testator, in order to document the capacity of the individual to create a will or trust that will be used to execute plans for their estate after death.

Similarly, when the will or trust of a decedent is contested after death, a forensic psychiatrist is often called upon to offer post-mortem opinions about the decedent’s testamentary capacity at the time when the relevant documents were executed, as well as to assess what influences, both due and/or undue, may have affected the decedent’s decision-making processes.

These latter opinions, of necessity, cannot include a psychiatric examination of the decedent. Nevertheless, through a careful review of medical records and witness deposition testimony, an accurate picture can usually be developed of the decedent’s functioning at the time the wills and/or trusts at issue were executed.

Testamentary capacity and undue influence are major factors in resolving legal challenges to wills, so getting an expert opinion from qualified professionals regarding these issues can greatly help in defeating a challenge or helping it succeed.

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