Joshua Werblin MD

The Feelings Doctor


Suite 550-2033, 25 Northeast 2nd Ave
 Miami, FL 33131

Legal Evaluations

In cases in which it is necessary to evaluate a person's mental or psychological capacity to make legal decisions, a licensed forensic psychiatrist or psychologist is often called upon. If the person whose judgment is being evaluated is dead, the evaluator investigates the circumstances surrounding the deceased's capability to act independently and with full awareness at the time the legal decision was made. Specific evaluations that often need to be made are discussed below.

Testamentary Capacity

Testamentary capacity is the legal term used to describe a person's mental ability to make a valid will, or to make valid changes to an existing one. A psychiatrist or psychologist frequently has a daunting task in determining testamentary capacity because, in many cases, the person who made the will (the testator) is dead. In addition, whether or not the testator is dead, those questioning testamentary capacity are often distraught family members. It can be very difficult to acquire accurate information from delving into family relationships, or to determine the motivations of various parties.

Testamentary Capacity Requirements

Legal requirements for testamentary capacity may vary in wording among jurisdictions, but usually require that the testator be aware of:

  • The extent and value of owned property
  • The persons who would be the natural beneficiaries
  • The elements of the disposition being made or altered
  • How these elements relate to the overall distribution of property

Undue Influence

When an individual's free will or judgment is overcome by another person through deception, manipulation, flattery or trickery, undue influence is being exerted. Undue influence is frequently a consideration in cases involving money or property. It is important to distinguish undue influence from duress. Duress involves the threat of physical force or of revealing damaging information, and includes blackmail and extortion. Undue influence, on the other hand, exists when one person exercises mental or moral influence to take advantage of another's distress, or weakened state of body and/or mind.

Undue influence is commonly used on the elderly, particularly those with dementia; the chronically ill; the psychologically damaged; and minors. Perpetrators of this type of abuse usually try to isolate their victims and keep them from seeking independent advice. Undue influence is commonly seen when weaker parties are coerced into ceding control of their money or changing their wills.

There are four elements to the use of undue influence:

  • Susceptibility of the victim
  • Mental, physical or psychological dependency of the victim on the perpetrator
  • Evidence of the perpetrator's desire to exercise undue influence
  • Evidence of a suspicious transaction

Typically, undue influence is exerted in a confidential relationship, usually between:

  • Parent and child
  • Teacher and student
  • Husband and wife
  • Attorney and client
  • Doctor and patient
  • Clergy and congregant
  • Guardian and ward
  • Romantic partners

Contractual Capacity

Contractual capacity is the ability of an individual to enter into a legally binding contract. There are several conditions that may legally affect a person's contractual capacity. They may include:

  • Being a minor
  • Lacking mental capacity
  • Having certain psychiatric disorders
  • Being under the influence of an intoxicating substance
  • Being an incarcerated convict

When an individual without contractual capacity enters into a contract, the contract is voidable. Laws concerning contractual capacity vary from state to state, and may make use of the tests below.

Cognitive Test

In most states, the cognitive test is the standard for determining mental capacity. It assesses a person's ability to understand both the meaning and effects of the agreement.

Affective Test

Some states use the affective test, which allows a contract to be voided if it is determined that one person is incapable of acting in a reasonable manner, and the other is aware of this incapacity.

Motivational Test

Other states apply the motivational test. It assesses a person's ability to judge whether or not to enter into a contract at the time it is signed.

Additional Resources