The marriage of psychology and law: testamentary capacity

Zuscak, Simon and Coyle, Ian and Keyzer, Patrick and Machin, M. Anthony (2019) The marriage of psychology and law: testamentary capacity. Psychiatry Psychology and Law, 26 (4). pp. 614-643. ISSN 1321-8719

Abstract

Banks v. Goodfellow [1870. LR 5 QB 549 (Eng.)] is almost 150 years old, yet still stands as authority for the principle that unsoundness of the mind will not rebut testamentary capacity where it does not affect the will itself. Readers of this journal would know that psychology has advanced greatly during this sesquicentenary, and yet the law relating to testamentary capacity has remained relatively stagnant. We review the present laws relating to decision-making for adults with impaired capacity, particularly in Queensland, and also review various models of gauging decision-making capacity in other jurisdictions. We argue that qualified experts should be enlisted to make determinations about testamentary capacity when questions of capacity arise. We also argue the case for the development of scientifically validated protocols to assess decision-making capacity in the testamentary context.


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Item Type: Article (Commonwealth Reporting Category C)
Refereed: Yes
Item Status: Live Archive
Additional Information: Published version cannot be displayed due to copyright restrictions.
Faculty/School / Institute/Centre: Current - Faculty of Health, Engineering and Sciences - School of Psychology and Counselling (1 Jan 2015 -)
Faculty/School / Institute/Centre: Current - Faculty of Health, Engineering and Sciences - School of Psychology and Counselling (1 Jan 2015 -)
Date Deposited: 24 Sep 2019 01:20
Last Modified: 25 Sep 2019 05:27
Uncontrolled Keywords: assessment protocol; cognitive testing; dementia; expert evidence; regulated decision-making; testamentary capacity
Fields of Research : 18 Law and Legal Studies > 1801 Law > 180104 Civil Law and Procedure
17 Psychology and Cognitive Sciences > 1701 Psychology > 170104 Forensic Psychology
Socio-Economic Objective: C Society > 94 Law, Politics and Community Services > 9404 Justice and the Law > 940406 Legal Processes
Identification Number or DOI: 10.1080/13218719.2018.1557506
URI: http://eprints.usq.edu.au/id/eprint/36462

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