How does Banks v. Goodfellow set the legal standard for testators' competence to execute a will? Explain the strategies outlined by Melton and colleagues (2007) that mental health professionals use in assessing competence to execute a will.

Question

What will be an ideal response?

Answer 1

Answers may vary.The legal standard for testators' competence to execute a will is derived from Banks v. Goodfellow (1870), in which the court held as follows:1. Testators must know at the time of making their wills that they are making their wills.2. They must know the nature and extent of their property.3. They must know the "natural objects of [their] bounty."4. They must know the manner in which the wills they are making distribute their property.This type of competence has a lower threshold than other competencies because it requires only that persons making a will have a general understanding of the nature and extent of their property and of the effect of their will on members of their family or others who may naturally claim to benefit from the property cited in the will (Melton et al., 2007). A person cannot be deemed incompetent to execute a will simply on the basis of the presence of a mental illness, unless there is clear evidence that the mental illness specifically interfered with the individual's ability to meet the standard set at the time the will was written.Assessment of this competence focuses on the individual's functional abilities at the time his or her will was written. Melton and colleagues (2007) outline some strategies used by mental health professionals in assessing competence to execute a will. First, they recommend structuring the evaluation to conform to the associated legal elements. They suggest using the sources available (e.g., the testator, family, friends, records) to first determine the purpose of the will and why it was written at that time. Second, they recommend gathering information about the testator's property holdings, which may include asking questions about occupation and salary, tangible property, and intangibles (e.g., bank accounts, investments). Third, the clinician should determine the testator's "values and preferences" (p. 361) to better understand the family dynamics (e.g., with whom does the testator have a good relationship, with whom does he or she does not get along). This information can shed light on the testator's rationale for bequeathing his or her belongings to specific individuals. Finally, Melton and colleagues recommend that clinicians assess the general consequences of the dispositions outlined in the will.One of the obvious difficulties in these types of evaluations is that the testator, the subject of the evaluation, is often deceased at the time the question of competence to execute the will arises. Thus, the sources of information will be different. If the testator is alive, he or she will be a primary informational source-but if he or she is deceased, the evaluator must gather information from family, friends, acquaintances, medical records, and other available sources without the testator's specific input.