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Testamentary capacity and delirium

  • Benjamin Liptzin (a1), Carmelle Peisah (a2), Kenneth Shulman (a3) and Sanford Finkel (a4)

Background: With the aging of the population there will be a substantial transfer of wealth in the next 25 years. The presence of delirium can complicate the evaluation of an older person's testamentary capacity and susceptibility to undue influence but has not been well examined in the existing literature.

Methods: A subcommittee of the IPA Task Force on Testamentary Capacity and Undue Influence undertook to review how to assess prospectively and retrospectively testamentary capacity and susceptibility to undue influence in patients with delirium.

Results: The subcommittee identified questions that should be asked in cases where someone changes their will or estate plan towards the end of their life in the presence of delirium. These questions include: was there consistency in the patient's wishes over time? Were these wishes expressed during a “lucid interval” when the person was less confused? Were the patient's wishes clearly expressed in response to open-ended questions? Is there clear documentation of the patient's mental status at the time of the discussion?

Conclusions: This review with some case examples provides guidance on how to consider the question of testamentary capacity or susceptibility to undue influence in someone undergoing an episode of delirium.

Corresponding author
Correspondence should be addressed to: Benjamin Liptzin, Department of Psychiatry, Baystate Health, 759 Chestnut Street, Springfield, MA 01199, U.S.A. Phone: +1 413-794-4235; Fax: +1 413-794-4234. Email:
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Banks v. Goodfellow (1870). LR5 QB, 549.

L. A. Frolik (2001). The strange interplay of testamentary capacity and the doctrine of undue influence: are we protecting older testators or overriding individual preferences? International Journal of Law and Psychiatry, 24, 253266.

S. K. Inouye , C. H. van Dyck , C. A. Alessi , S. Balkin , A. P. Siegal and R. I. Horwitz (1990). Clarifying confusion: the confusion assessment method: a new method for detection of delirium. Annals of Internal Medicine, 113, 941948.

J. R. McCartney and I. M. Palmateer (1985). Assessment of cognitive deficit in geriatric patients. Journal of the American Geriatrics Society, 33, 467471.

C. Peisah , H. Brodaty and C. Quadrio (2006). Family conflict in dementia: prodigal sons and black sheep. International Journal of Geriatric Psychiatry, 21, 485492.

K. I. Shulman , C. A. Cohen , F. C. Kirsh , I. M. Hull and P. R. Champine (2007). Assessment of testamentary capacity and vulnerability to undue influence. American Journal of Psychiatry, 164, 722727.

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International Psychogeriatrics
  • ISSN: 1041-6102
  • EISSN: 1741-203X
  • URL: /core/journals/international-psychogeriatrics
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