The marriage of psychology and law: testamentary capacity

Simon Zuscak; Ian Coyle; Patrick Keyzer; M Anthony Machin

doi:10.1080/13218719.2018.1557506

The marriage of psychology and law: testamentary capacity

Psychiatr Psychol Law. 2019 Apr 4;26(4):614-643. doi: 10.1080/13218719.2018.1557506. eCollection 2019.

Authors

Simon Zuscak^{1

2

3}, Ian Coyle^{4

5

6}, Patrick Keyzer⁷, M Anthony Machin⁸

Affiliations

¹ Clinical Psychologist, Director, Clinical Corporate Consulting, Australia.
² Honorary Associate, Law School Operations, La Trobe Law School, Melbourne, VIC, Australia.
³ Adjunct Lecturer, School of Psychology and Counselling, University of Southern Queensland, Toowoomba, Australia.
⁴ Adjunct Professor, School of Law, College of Arts, Social Sciences and Commerce, La Trobe University.
⁵ Adjunct Professor, School of Psychology and Public Health, College of Science, Health and Engineering, La Trobe University.
⁶ Adjunct Professor, School of Psychology, Faculty of Health, Engineering and Sciences, University of Southern Queensland.
⁷ Head of School and Chair of Law and Public Policy, La Trobe University.
⁸ Professor (Psychology), School of Psychology and Counselling, University of Southern Queensland, Toowoomba, Australia.

Abstract

Banks v. Goodfellow [1870. LR 5 QB 549 (Eng.)] is almost 150 years old, yet still stands as authority for the principle that unsoundness of the mind will not rebut testamentary capacity where it does not affect the will itself. Readers of this journal would know that psychology has advanced greatly during this sesquicentenary, and yet the law relating to testamentary capacity has remained relatively stagnant. We review the present laws relating to decision-making for adults with impaired capacity, particularly in Queensland, and also review various models of gauging decision-making capacity in other jurisdictions. We argue that qualified experts should be enlisted to make determinations about testamentary capacity when questions of capacity arise. We also argue the case for the development of scientifically validated protocols to assess decision-making capacity in the testamentary context.

Keywords: assessment protocol; cognitive testing; dementia; expert evidence; regulated decision-making; testamentary capacity.