Testamentary competency

This paper examines the development of the doctrine that restricts testation to competent persons, and the use of expert testimony in implementing that doctrine. Since 1870 the leading articulation of this doctrine has been Lord Cockburn's Rule, which among other things requires that the testator knew the natural objects of his bounty at the time the will was made. The facultative theory of mind underlying Lord Cockburn's Rule is consistent with the contemporary, functional approach to competency to make medical decisions taken by the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Where expert testimony, based on training in the behavioral sciences, takes a functional approach to discovering the nature of the testator's values regarding other persons, it can assist the trier of fact significantly more than the lay opinion testimony which many courts have preferred in questions of testamentary competency. The concern of commentators that courts make false attributions of testamentary competency out of a perceived need to protect the family would be lessened, and the freedom of testation promoted, if courts directed their attention, through the kind of expert testimony proposed, to the testator's psychological family, instead of the persons identified as family members in intestacy statutes.The author wishes to thank Professors John Monahan, Roberta A. Morris, and Richard J. Bonnie for their helpful critiques of an earlier draft of this paper. The author also gratefully acknowledges the research assistance of Vicki L. Epling and Paul A. Lombardo, law students at the University of Virginia.A portion of this paper was presented by the author at the 1982 Annual Convention of the American Psychological Association under the title, The Application of Psychology to Legal Problems Involving Trusts and Estates, as part of the symposium, Psychological Questions in Legal Areas Largely Unexplored by Psychologists. This symposium was proposed and organized by Professor Gary B. Melton of the University of Nebraska-Lincoln.