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Copyright (c) 1996 Board of Trustees of the University of Illinois
The Elder Law Journal

ARTICLE: Testamentary Capacity in Alzheimer's Disease

Fall, 1996

4 Elder L.J. 225


Warren F. Gorman, M.D. *


Our aging population increasingly falls victim to Alzheimer's disease, a dementing and progressively worsening illness. Medical (clinical) capacity is a physician's opinion regarding an individual's ability to make decisions and to act for himself. Legal capacity is an individual's capacity to understand the nature and effect of what he is doing. An individual can retain legal capacity even if he demonstrates eccentric behavior, holds bizarre beliefs, experiences medical conditions producing confusion and memory deficits, or is physically feeble.

Testamentary capacity is the mental competence to execute a will, requiring that the testator be aware of the nature and extent of his property, know the persons to whom he will give his property, and understand the effects of his acts. The standards for retention of testamentary capacity are extremely permissive, and persons experiencing lucid intervals may be considered competent to execute wills during such periods. The determination of testamentary capacity is a fact-driven inquiry; the physician's opinion is not dispositive. The few courts addressing the issue have consistently held that testators with mild or mild to moderate Alzheimer's disease are competent to execute wills based upon testimony of those who interacted with the testator on the day the will was executed, often contrary to a physician's opinion.
America is an aging society. In the past decade, from 1980 to 1990, the percentage of elderly persons sixty-five years of age or older increased by twenty-two percent. 1 By the year 2011, when the Baby Boomers born during the war ...
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