Eric G. Mart, Ph.D., ABPP  |  July 21, 2016

While there have been a variety of standards for determining whether a testator has or had the requisite mental state to create a valid will, the standard used in nearly every jurisdiction in the United States draws heavily on the 1870 case of Banks v. Goodfellow. This British case was decided by Lord Henry Cockburn, who defined the standard for testamentary capacity as summarized below:

• The testator understands the nature and purpose of a will and also understands that he or she is creating such a document.
• The testator understands the probable impact of the distribution of his or her assets on the individuals involved.
• The testator understands the extent of his or her property.
• The testator recalls the identities of the natural objects of his or her bounty (e.g., the individuals who, all things being equal, would likely be the recipients of the testator’s distribution of assets).
• The testator’s decisions regarding this distribution are not the product of delusion or other mental illness; he or she is of sound mind.

With regard to the last criterion, it must be understood that at the time these criteria were promulgated, no clear distinction was made in the law between metal unsoundness caused by what are sometimes referred to as functional mental illnesses (e.g., schizophrenia, bipolar disorder, seasonal affective disorder) and organic processes such as dementia or delirium. There were also various legal cases in which the concept of the lucid interval was introduced. An early definition of this concept was outlined in The Practice in Proceedings in the Probate Courts of Massachusetts: With an Appendix of Uniform Forms and Rules Approved by the Supreme Judicial Court, by William L. Smith (fifth edition, revised by Arthur Lord, with additional forms and rules, and a digest of statutes from 1894-1899):

“Lucid Intervals. — The party supporting the will may show that the testator, although insane at some period of his life, had recovered his reason, or that the will was made during a temporary cessation of the insanity. Lunatics occasionally recover for a time and are conscious of their acts. The lucid interval may be a few hours or minutes in duration, or it may continue for weeks, months, and even years. Evidence of a lucid interval is to be examined with great caution, especially in cases where the alleged interval was of brief duration. A mere diminution in the violence of the disorder does not constitute a lucid interval. It need not, of course, appear that the predisposition to the disease had been extirpated, or that the testator had regained the same degree of intellectual ability that he possessed previous to his insanity; but it must appear that he was conscious of his acts, and able to understand their nature and consequences. The fact that the will is a rational one and made in a rational manner, though not conclusive, is strong evidence that it was made in a lucid interval.

“In establishing the fact of a lucid interval, evidence has been admitted to show that the disposition of the testator’s property made by his will was consistent with his intentions declared previous to his insanity.”

The concept of the lucid interval has been used in many cases to support the validity of a will that has been challenged. In certain conditions, this can be a valid approach. Individuals with a variety of acute conditions can experience significant fluctuations in cognitive status. Persons who are experiencing acute exacerbations of condition such as psychosis or an affective disorder can rapidly improve if properly treated with medications and psychotherapy. In the same way, individuals who develop acute delirium due to physical illness, polypharmacy or other toxicities may rapidly return to baseline when their underlying conditions are addressed. However, the idea of lucid intervals in individuals with dementing conditions such as Alzheimer’s disease or vascular dementia has also been raised with some frequency in cases in which a will made by an individual with one of these conditions is being defended. The underlying premise for these types of defenses is that individuals with dementing conditions have good days and bad days, and the will in question was created on one of the good days.

The belief that individuals suffering from dementia exhibit significant fluctuations in the severity of their conditions appears to proceed from the observations of caregivers or primary care physicians who notice that a particular patient seems more alert and tuned in at times. But does research support the idea that an individual suffering from dementia might episodically improve sufficiently to create a valid will even though at baseline the individual would not meet the Banks v. Goodfellow criteria? A recent paper by Kenneth Shulman et al. (2015) suggests that this is seldom the case. These authors note that the available research indicates that, while some fluctuations in mental status can occur, they tend to quite brief and to occur primarily in the areas of attention and alertness. Cognitive fluctuations in those areas essential to testamentary capacity, such as executive functioning and episodic memory, were not seen to occur to any significant degree, and when they do they are of such limited duration as to be too short for a will to be completed. A possible exception to this is seen in individuals suffering from dementia with lewy bodies, where cognitive fluctuations are seen with more frequency, but there is little evidence that these fluctuations are sufficient to constitute a lucid interval.

Based on this research, it appears that the concept of individuals with dementia experiencing lucid intervals sufficient to restore testamentary capacity is not supported by contemporary science. Shulman et al. suggest that further research is necessary to clarify the validity of the idea of lucid intervals in testation, and that reports by caregivers that a will was created during such an interval be carefully scrutinized in probate matters.

References

Shulman, Kenneth I., Ian M. Hull, Sam DeKoven, Sean Amodeo, Brian J. Mainland, and Nathan Herrmann. “Cognitive Fluctuations and the Lucid Interval in Dementia: Implications for Testamentary Capacity.” The Journal of the American Academy of Psychiatry and the Law, 43(3) (September 2015): 287–92.