Retrospective assessment of testamentary capacity: the Scottish position

Most capacity assessments are contemporaneous: the examiner sees the person, tests their understanding directly, and forms a view based on direct examination. A testamentary capacity dispute almost always arises after the testator has died, so the psychiatric opinion must be reconstructed entirely from documentary and testimonial evidence — medical records, the terms of the will itself, the account of the solicitor who took instructions, and the observations of family members and others who had contact with the testator around the material time. This is a fundamentally different and more constrained exercise than a contemporaneous assessment, and the report should say so plainly rather than presenting a retrospective opinion with the same apparent certainty as a direct examination would allow.

The Scottish test for testamentary capacity asks whether the testator, at the time the will was made, understood the nature of the act of making a will, knew the extent of their property in general terms, and was aware of the persons who might be thought to have a claim on their bounty, and was not under the influence of any delusion or disorder of mind that affected the disposal made. The psychiatric expert's role is to give an opinion, from the medical evidence, on whether the testator's mental state at the material time was such as to satisfy or to undermine those elements — not to decide the ultimate question, which remains for the court.

The quality of a retrospective capacity opinion is directly proportional to the quality of the contemporaneous record. The most valuable material is anything created at or close to the time the will was executed: the solicitor's attendance note recording the instructions given and any observations of the testator's presentation and understanding, GP and hospital records from the surrounding period, any cognitive testing carried out for clinical reasons around that time, and care records where the testator was in a care setting.

Evidence created after the event — family recollection of how the testator seemed, gathered in the course of the dispute itself — is admissible and can be relevant, but it carries less weight than contemporaneous clinical material because recollection is reconstructed with the benefit (or the bias) of hindsight and is coloured by the outcome the witness favours. A sound report distinguishes clearly between contemporaneous evidence and reconstructed recollection, and explains what weight has been given to each and why.

Where a solicitor took instructions for the will and recorded, at the time, an assessment of the testator's understanding — what the golden rule for wills made in circumstances of doubt as to capacity was designed to produce — that record is often the single most valuable piece of evidence available to a retrospective psychiatric opinion. A note that records specific questions asked and the testator's specific answers, rather than a general impression of competence, allows the expert to test that account against what is known of the testator's diagnosis and its likely effect on cognition at that time. The absence of such a note does not prevent an opinion being given, but it removes one of the most reliable sources of contemporaneous evidence and the report should note the resulting limitation.

Capacity is decision-specific and time-specific, not a global attribute. A diagnosis of dementia, for example, does not of itself establish incapacity to make a will; the question is whether, at the material time, the specific cognitive and volitional demands of the testamentary act were within the testator's ability, which requires the expert to consider the severity and pattern of the particular dementia, whether the presentation is one that fluctuates — as delirium and some vascular presentations do — and whether the will was made during a lucid interval. Equally, an active delusional belief that is documented as directly influencing the terms of the will is potent evidence against capacity even absent any global cognitive impairment. The retrospective opinion must therefore engage with the specific mechanism by which the diagnosed condition is said to have affected, or not affected, the particular decisions the will reflects, rather than resting on the diagnosis alone.

A useful instruction in a testamentary capacity dispute provides the will and any earlier wills for comparison, the solicitor's file including attendance notes, complete GP records for a period extending well before and, where relevant, after the date of execution, any hospital, care home or community mental health team records, and witness statements or precognitions from those with direct contact with the testator around the material time. Where cognitive testing was carried out for unrelated clinical reasons close to the date of the will — a memory clinic assessment, for example — the full test results, not merely the summary letter, should be provided, since the pattern of scores across domains is often more informative than the global score alone.