International Psychogeriatrics

Review Article

Testamentary capacity and delirium

Benjamin Liptzina1 c1, Carmelle Peisaha2, Kenneth Shulmana3 and Sanford Finkela4 for the International Psychogeriatric Association Task Force on Testamentary Capacity and Undue Influence

a1 Department of Psychiatry, Baystate Health, Springfield, MA, U.S.A.

a2 Academic Department for Old Age Psychiatry, Prince of Wales Hospital, and University of New South Wales, Sydney, Australia

a3 Department of Psychiatry, Sunnybrook Health Sciences Centre, University of Toronto, Ontario, Canada

a4 University of Chicago Medical School, Wilmette, IL., U.S.A.


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.

(Received January 30 2010)

(Revised March 05 2010)

(Revised March 28 2010)

(Accepted March 29 2010)

(Online publication July 01 2010)