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Testamentary Competency: Reconciling Doctrine with the Role of the Expert Witness

Testamentary Competency: Reconciling Doctrine with the Role of the Expert Witness This paper examines the development of the doctrine that restricts lestation 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. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Law and Human Behavior American Psychological Association

Testamentary Competency: Reconciling Doctrine with the Role of the Expert Witness

Law and Human Behavior , Volume 9 (2): 27 – Jun 1, 1985

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Publisher
American Psychological Association
Copyright
Copyright © 1985 American Psychological Association
ISSN
0147-7307
eISSN
1573-661X
DOI
10.1007/BF01067047
Publisher site
See Article on Publisher Site

Abstract

This paper examines the development of the doctrine that restricts lestation 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.

Journal

Law and Human BehaviorAmerican Psychological Association

Published: Jun 1, 1985

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