Dead Man Talking: Psychiatric Evaluations of People who are no longer among the Living


These types of evaluations are among my favorite, although saying so out loud is possibly not quite politically correct. Still, I didn’t kill them, so let us consider what types of evaluations I might be asked to perform, and how these evaluations might be utilized in a court of law.

Testamentary Capacity refers to the ability of an individual to make a will under the law. Sometimes I’m asked to evaluate a still living person, for example someone in a nursing home. But although the criteria are the same, it is fairly easy to evaluate someone who alive. I can ask them questions, we can bring witnesses to the party, and people generally have an idea if the person has an idea of the requirements necessary to write a will, which in virtually every jurisdiction in the United States includes only a few elements: the person must know the nature and extent of his bounty, who his natural heirs are, and to whom he or she wishes to leave his estate. While there are some local additions (in New Jersey, the person is supposed to know in what type of business he or she worked), those additions are minimal and beside the point.

These evaluations become really interesting when a person writes a will, dies of natural causes, and then the heirs and non-heirs start to contest the will. Sometimes only one heir does not like the way the will is written — an heir might not like having to wait until a certain age to get her money, or might not like having to share with siblings. Then the heirs can contest the will, and to contest a will, these heirs must hire attorneys.

Attorneys then look for experts. Often the attorneys hire any random doctor whom they can convince to write something stating that the dead person lacked testamentary capacity on the day he or she wrote their will. Smart attorneys, however, hire me.

In rder to really assess testamentary capacity, we have to recreate the person’s mental status examination as it pertains to the requirements for testamentary capacity on the date of the will writing. A three-sentence letter stating that the individual took medications that might impair consciousness is insufficient. I have seen all manner of ridiculousness submitted in lieu of actual psychiatric expert reports. “Because I said so” is not an expert report. “Because I am a doctor and I said so” is not an expert report. Lawyers need to hire experts who know how to read and understand medical records and apply the appropriate legal standards to them, and then communicate their findings in a way the courts can understand. Otherwise the “expert” reports are useless.

In addition to testamentary capacity, there are other cases in which mental status of deceased people has to be recreated. One example is the psychiatric autopsy, when someone committed suicide or otherwise died and there are legal matters that need to be investigated. Sometimes a wrongful death suit requires information not uncovered in any other investigation. Both civil and criminal matters often require the input of a psychiatrist in uncovering the details of someone’s mental status when that person is unavailable for interview. Those details are important. We do not guess. We reconstruct, based on available information. This work is detailed, painstaking, and challenging. And it is not a letter saying “Because I said so.”

Vivian Shnaidman