Skip to main content Accessibility help

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:


Hide All
American Psychiatric Association (2000). Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision. Washington, DC: American Psychiatric Association.
Goodfellow, Banks v. (1870). LR5 QB, 549.
Frolik, L. A. (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.
Hull, R. and Hull, I. (1996). Suspicious circumstances in relation to testamentary capacity and undue influence. In Law Society of Upper Canada, Estates: Planning, Administration, and Litigation (pp. 7787), Special Lectures. Toronto: Carswell.
Inouye, S. K., van Dyck, C. H., Alessi, C. A., Balkin, S., Siegal, A. P. and Horwitz, R. I. (1990). Clarifying confusion: the confusion assessment method: a new method for detection of delirium. Annals of Internal Medicine, 113, 941948.
Liptzin, B. and Jacobson, S. (2009). Delirium. In Sadock, B. J., Sadock, V. A. and Ruiz, P. (eds.), Comprehensive Textbook of Psychiatry, 9th edn (pp. 40664073). Philadelphia: Lippincott Williams & Wilkins.
McCartney, J. R. and Palmateer, I. M. (1985). Assessment of cognitive deficit in geriatric patients. Journal of the American Geriatrics Society, 33, 467471.
Peisah, C., Brodaty, H. and Quadrio, C. (2006). Family conflict in dementia: prodigal sons and black sheep. International Journal of Geriatric Psychiatry, 21, 485492.
Peisah, C. et al. for the International Psychogeriatric Association Task Force on Wills and Undue Influence (2009). The wills of older people: risk factors for undue influence. International Psychogeriatrics, 21, 715.
Shulman, K. I., Cohen, C. A., Kirsh, F. C., Hull, I. M. and Champine, P. R. (2007). Assessment of testamentary capacity and vulnerability to undue influence. American Journal of Psychiatry, 164, 722727.
Shulman, K. I., Peisah, C., Jacoby, R., Heinik, J. and Finkel, S. for the International Psychogeriatric Association Task Force on Testamentary Capacity and Undue Influence (2009). Contemporaneous assessment of testamentary capacity. International Psychogeriatrics, 21, 433439.
Spar, J. E. and Garb, A. S. (1992). Assessing competency to make a will. American Journal of Psychiatry, 149, 169174.
Sprehe, D. J. and Kerr, A. L. (1996). Use of legal terms in will contests: implications for psychiatrists. Bulletin of the American Academy of Psychiatry and the Law, 24, 255265.


Testamentary capacity and delirium

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


Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed