Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Sunday, April 30, 2006

Testamentary Capacity

Pamela Champine (Associate Professor of Law, Director of Core Curriculum, Graduate Tax Program, New York Law School) has recently published her article entitled Expertise and Instinct in the Assessment of Testamentary Capacity, 51 Vill. L. Rev. 25 (2006).

Here is the conclusion to her article:

Contemporary expert assessment is the missing link in the quest to transform the unpredictable morass of testamentary capacity decisions into a coherent body of law. The development and use of FAIs [forensic assessment instrument] in other areas of law offer a model for the development of a testamentary capacity FAI. Testamentary capacity law stagnated for the entirety of the twentieth century; it ought not to continue stagnating in the twenty-first.

In order to move forward, the testamentary capacity doctrine must give clear guidance to the psychologists who would design a testamentary capacity FAI, and procedure must facilitate its use. Doctrinal and procedural modifications to testamentary capacity law must originate in a logical, workable and generally acceptable policy vision. The aim of this Article has been to offer such a vision.

Much remains to be done. The FAI must be designed, the procedural framework must be set forth in detail; a legislative proposal must be packaged and passed; and estate planning lawyers and their clients must be educated about the potential benefit of the reform. The agenda is daunting, but the magnitude of the potential benefit of this reform is even greater. Never has there been such a promising opportunity for meaningful reform in this area where reform has been so near and yet so far for far too long


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