Occasionally, those hoping to demonstrate the capacity of a testator will film a video of the testator purporting to show that they were cognitively intact or that the will was a reflection of their independent and capable wishes. Unfortunately, the naïve interviewer makes the mistake of confusing the preservation of social graces for intact cognition and considers passive acquiescence as evidence of independence of mind. Clinicians understand, or should understand, that one can readily miss significant cognitive impairment if specific cognitions are not probed directly.
A video of a testator is only as good as the quality of the interview, ie., the skill of the interviewer. Since most videos are made by amateurs (family, friends or the ‘odd’ lawyer), the upshot of the video is that it usually demonstrates the exact opposite of what was intended. Some videos simply show the testator agreeing passively to the reading of each paragraph of the will, thus inadvertently supporting the possibility of undue influence. Other videos show the testator interacting with family members at dinner or at a family function engaging in superficial social banter that provides no assurance that the testator has an understanding or appreciation of the significant people or issues in their lives. Recall that an important criterion of testamentary capacity is the ability to provide a clear, consistent rationale for the distribution of the estate especially when there has been a significant departure from previously expressed wishes or prior wills. These videos generally fail to demonstrate this. So, unless the interviewer is skilled, it is probably best to leave such documents on the cutting room floor. Do not fall into the proverbial trap of being hoisted on one’s own petard.
For those readers who have continued to read to this point, I congratulate you on your diligence and perseverance. Since this is my last regular blog for Allaboutestates, I want to take the opportunity to thank Justin de Vries for inviting me to participate in this informative exchange with thoughtful and knowledgeable bloggers and readers. Thanks also to Gillian Fournie for her technical help, advice and encouragement. I have enjoyed the challenge of providing the ‘medico’ component of what is a true medico-legal collaboration in the assessment of testamentary capacity and vulnerability to undue influence .