State-of-the-Art Testamentary Capacity Assessment Tool (TCAT) in Dementia: A Review of Studies and Update Report

1. Introduction

Testamentary Capacity (TC) consists a form of legal transaction regarding the ability of a person to make his/her own will in a valid way. In recent decades, Courts is often confronted with an increased number of contested wills related to lack of TC.

Major factors influencing the TC of a person are undue influence and medical conditions affecting cognitive functions such as judgment, within an increasingly aging population. The property’s size of the testator/trix and the complexity of modern families’ structure may further lead to legal conflicts. Even for normal aging with no dementia, the cognitive process of composing a will is a complex, higher order functional capacity with many cognitive, behavioral and emotional factors involved [1]. TC is distinct from financial capacity which includes a wide range of managing finances and assets. Some cognitive domains related to TC include memory, especially autobiographical one, executive functions like judgment and intention and social cognition. The characterization of a person as incapable of will making only due to diagnosis of dementia or a psychiatric disorder can be misleading, since the assessment of TC is a multifunctional domain, crosses both the legal and medical fields and needs a collaborative approach.

The health practitioners are often asked as “experts” to evaluate a person’s TC, while the Courts is the final judge. Although retrospective evaluations are common, the contemporaneous assessment may be more reliable since it concerns the living testator at the time of or near the composition of his/her will, accordingly protecting his/her own wishes [1]. Determination of TC around the world is defined according to specific legal criteria, which are closely related to the Banks v Goodfellow criteria (1870) as follows: The person must know: a) that he/she is making a will; b) the extent and nature of his/her estate and (approximately) the value of it; c) the “natural objects of his/her bounty” who are legally entitled to the estate he/she is distributing; and d) how his/her assets are going to be distributed through his/her will [1,2].

TC can be retained in mild or moderate dementia, since dementias and other mental illnesses do not inevitably lead to testamentary or other legal incapacity. Some psychiatric issues involved in TC, in need for careful evaluation, are related to impaired perception, impulsivity and judgment which may influence the testator’s appreciation of the will’s consequences [3]. When the person has a severe cognitive decline, legal professionals may not need the assistance of an expert in the assessment of TC, but there are many cases where subtle interpretations of cognitive functions are needed, i.e. in mild or moderate dementia [4]. At the same time, health professionals should proceed to the evaluation of a patient’s TC by taking into consideration the solicitors’ advice regarding the legal tests, so as not to judge an individual as incompetent just by having scored low on a screening cognitive test while he/she may be fully aware of how and to whom he/she wishes to dispose his/her assets [5].

Therefore, a thorough cognitive evaluation is necessary in the context of TC assessment. The clinical interview is the key component in TC assessment with the neuropsychological instruments being a valuable complementary tool. These are diagnostic of dementia or deficits in several cognitive functions related to TC only under the expertise evaluation of the practitioner, be it a Neurologist or a Psychiatrist. They do not replace the forensic expert’s judgment, but they provide evidence for the expert’s evaluation and a more consistent approach to TC assessment for the Courts. Methods used for the TC assessment may include formal tests, behavioral checklists, direct observations and (semi) interviews [1].

There are limited neuropsychological instruments with measured psychometric properties, specialized in TC assessment in dementia. Τhe expert often needs to utilize a combination of tools to ensure adequate coverage of the functions necessary for a competent person to compose a valid will. The examiner often needs a specialized screening tool to help him decide who is clearly capable and who needs a forensic expertise. In this context, the Testamentary Capacity Assessment Tool (TCAT) has been developed.

The aim of the present review study is to provide an update report and highlight the usefulness of the TCAT as a specialized instrument for TC assessment in dementia in everyday clinical and legal practice. It will present the studies which have used the TCAT and have showed that it is the most useful brief screening specialized tool among the existing TC assessment instruments for dementia.

2. Method

A systematic search of Pubmed (2018-2025) was undertaken. The search terms “dementia”; “instruments”; “testamentary capacity”, and; “testamentary capacity assessment tool” have been used and combined with each other, while MeSH terms have been checked. The papers regarding the use of TCAT and its comparison to the other existing TC instruments were included in the study. Articles were considered for inclusion if they were available in English and full text.

3. Results

3.1. Neuropsychological Background of Testamentary Capacity Assessment in Dementia

TC is considered as a complex capacity and an advanced activity of daily living requiring intact frontal/executive functions, in contrast to other simple daily living capacities which are more simple, i.e. the household ones. Several cognitive domains have been related to the ability to make a will: memory (including free recall and recognition); orientation; expressive and receptive language; and executive functions, such as abstract thinking, impulsiveness and social judgment [1]. Indeed, executive dysfunction may be an early feature of dementias.

In dementia, even mild to moderate, there may be impairment in patients’ interpersonal relationships due to deficits in executive functions and autobiographical memory, with suspiciousness and impulsive judgment being frequent symptoms affecting patients’ TC. Personality changes may also occur. All the above may lead, for instance, the patient to exclude from his will a person normally expected to be the testator’s heir [6].

In contrast to the few existing studies for specialized methods for the TC of patients with dementia, there are instruments assessing the decision-making capacity in dementia focusing mainly on the ability for therapeutic choices (informed consent to treatment), everyday life decisions and consent to research participation. In the recent literature, a combination of instruments is often administered for the assessment of TC and these can be subdivided into the following categories:

A. General ability tests, testing cognitive functions or independent living skills.

These may be very useful for the screening of cognitive impairment, as well as the detection of subtle deficits and the possible changes over time. Examples include the: Mini-Mental State Examination (MMSE) [7]; Montreal Cognitive Assessment (MoCA) [8]; Frontal Assessment Battery (FAB) [9] and; Addenbrooke’s Cognitive Examination Revised (ACE-R) [10] are often used in legal capacity assessments. Nonetheless, none of these can evaluate specifically or predict the TC in dementia [11].

B. Specific tests, including financial capacity (FC) and decision-making capacity assessment instruments.

Some FC models have been used for the assessment of TC, especially regarding evaluation of the patient’s perception about the value of his/her property, such as the Hopemont Capacity Assessment Interview (HCAI) [12] and the Financial Capacity Instrument (FCI) [13,14] which are two of the Forensic Assessment Instruments (FAIs), namely psychological assessment instruments which can provide a specific and direct answer to legal and clinical questions [15]. Nevertheless, the FAIs have no measured psychometric properties for the specialized TC assessment.

The administration of a combination of instruments for TC assessment requires a long time and can be both rather exhausting for the patient and impractical for the medical practitioner who often needs a brief screening tool before referring to the forensic expert [1]. Despite the recommendations for such a specialized, medico-legal tool, there are limited relevant studies. This is mainly due to major methodological difficulties when assessing TC in a standardized way, since it should be always evaluated at the time of the will composition and is strongly situation-specific. Furthermore, as mentioned above, a multidisciplinary approach is needed for its development, since TC is a function crossing both the legal and medical fields requiring a collaborative approach for its assessment [1,16,17]. Even in non-demented elderly subjects, the evaluation of their intention in relation to their TC constitutes a complex procedure, which requires the expert to take into consideration cognitive, functional and emotional processes [1,6,18].

3.2. Testamentary Capacity Assessment Tool (TCAT)

For the above reasons, the Testamentary Capacity Assessment Tool (TCAT) has been developed [19]. It is a brief specialized neurocognitive instrument for the assessment of TC in patients with dementia, independent of collateral information regarding financial parameters. TCAT is used as a screening instrument for the identification of persons in need of more intensive evaluations or for the reliable exclusion of patients from TC by using a cut-off score. Its administration is easy, so that it can be used either by clinicians or other professionals, i.e. attorneys, lawyers or notary publics, while it can predict the expert’s opinion in order to proceed in a more extensive evaluation by an expert [19].

3.3. Structure of the TCAT and Strengths

For the development of the TCAT, a team collaborative work was conducted from professionals playing separate but complementary roles: A behavioral Neurologist (S.G.P.); A Forensic Psychiatrist who makes expertises for the Courts (A.D.); A Cognitive Neuropsychologist (A.E.); A Neurologist with special interest in dementia (P.V.); A Senior Court Judge (M.M.); A Neuropsychologist with special training in medical Statistics (I.B.). Since TC requires a multifunctional process, the collaborative approach which was followed has been a key-factor for the TCAT significance.

All the important components required for TC are included in the TCAT, namely: memory; knowledge of financial issues; intention and; absence of acute psychopathology. The intention of the testator/trix of how and to whom he/she wants to dispose his/her property and his/her ability to explain his/her choices and wishes in a rational way, is perhaps the major component of the will’s validity, as well as the most difficult parameter to measure in an objective way [1]. Making a will is a form of planning and, thus, TC is dependent upon intact executive functioning.

More specifically, in the TCAT, emphasis is placed on the evaluation of autobiographical memory, since when this is impaired there is also impaired recall of past relationships, good times and bad times, including past disputes [20]. It is also described that impaired working memory may render persons with dementia unable to appraise their relationships in the context of the past and present simultaneously. Consequently, they may be particularly vulnerable to possible heirs or those with whom they are in frequent visual contact [21]. Special attention was paid so that possible cases of the family situations (family states) and occupational status of the participant would be included in the TCAT with adjustment of the relevant questions, while the statistical properties of the different forms of the tool have been compared. Separate forms of the TCAT are administered according to the family status.

Emphasis is additionally placed on assessing testator’s judgment and intention, focusing on TC, taking into consideration that impaired judgment and reasoning may constitute the patient unable to consider the meaning, significance or moral import of another’s behavior, weigh up priorities and come to well-reasoned decisions. Thus, patients may make shallow and impulsive judgments of people and situations and/or become vulnerable to the influence of those with whom they are in frequent contact [22].

The structure of the TCAT is based on current methods used in clinical practice and research. It includes scenarios in the form of vignettes, structured questions to assess the patients’ judgment and intention regarding their TC, as well as a theory of mind scenario in order to examine the patients’ way of thinking and ability to analyze a specific situation.

The importance of vignettes’ use is highlighted in the literature [23,24,25,26,27]. In the TCAT, hypothetical scenarios were created de novo, in the form of vignettes which were simple and realistic so that the participant does not find it difficult to answer and, at the same time, his/her decision-making capacity is appreciated reliably. Similarly, the vignettes in the part evaluating the judgment (Part D) do not describe cases with multiple possible answers/meanings/explanations or profound subjectivity.

Furthermore, in the TCAT there are no questions requiring the confirmation from caregivers or relatives regarding the financial issues, since informants may provide biased or inaccurate information about patient’s functional skills, including those related to FC [28], especially when there is conflict within the family [29]. Patients with mild dementia may be unaware of their impairment in financial abilities, due to both cognitive impairment and depression, and their informants may misestimate the patients’ FC [30]. Moreover, AD patients often overestimate their financial abilities, while their caregivers have been shown to either under- or overestimate the financial abilities of the patients [31]. Thus, the no-need for collateral sources of information related to financial parameters (Part C) constitutes an extra advantage of the TCAT.

Another strength of the TCAT is the use of Theory of Mind (ToM) scenario in order to examine the patients’ way of thinking and ability to analyze a specific situation [19]. This ToM paradigm’ development was based on “first-order false belief tests” which are designed to assess the individual’s ability to infer that someone can have a (mistaken) belief which is different from their own true belief. The ToM scenario has the form of a figure which was designed de novo and is included in part D (see Appendix A). Social cognition can be approached by using a ToM scenario and plays an important role in TC, thus it should be taken into consideration during the TC assessment. It has been shown that AD patients can be impaired both in emotion recognition and decoding complex social messages and these deficits cannot be explained by general cognitive decline [32]. Especially in TC, the impaired decoding may impair patients’ decisions about both their assets’ distribution and claims about their heirs. The evaluation of social cognition is unique in the TCAT and is not assessed by any of the other existing TC instruments (mentioned below).

The TCAT is short, requiring about 20 minutes for its administration, since it is described that for practical applicability, an instrument should be used easily and not be very lengthy, while it should easily be adopted and used by non-specialists [19]. It includes the following information [19] (see the instrument in Appendix A):

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Demographic Data: sex, age, years of education, who the patient lives with.

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Part A: Assessment of autobiographical memory including questions about the patient’s family and important facts of his/her life, as well as episodic memory with free recall of the four products utilized in Part C.

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Part B: Documenting the patient’s behavior during the assessment. The Patient Health Questionnaire-9 (PHQ-9) [33,34] is co-administered as an exclusionary criterion for patients with high levels of depressive symptoms and it is not included in the TCAT scoring.

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Part C: Assessment of financial issues’ knowledge and free recall of the four products asked in Part C (this score is included in the score of Part A). The items of the TCAT in Parts C and D were formulated de novo.

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Part D: Assessment of intention and judgment, using vignette-based questions with hypothetical scenarios and a theory of mind paradigm.

The results from the original research study of TCAT development [19] showed that it is a reliable, valid and sensitive tool for the evaluation of TC in dementia and can predict the opinion of the expert regarding the TC of a patient, showing satisfactory levels of sensitivity and specificity. It is a homogenous instrument and assesses a unified construct related to TC, while the values of sensitivity and specificity combined with the high levels of internal reliability support the criterion-related validity of the new instrument.

The simplicity of TCAT’s administration in everyday clinical practice is strengthened by using the form with a maximum score of 42 (without the six questions about siblings and children) which demonstrates very similar sensitivity and identical specificity with the form with a maximum score of 45. In this way, a common scoring format for all potential participants - regardless of the existence of siblings or children- can be used. Furthermore, the TCAT appears to be similarly effective both for patients with mild and moderate dementia and shows satisfactory psychometric properties in individuals with low educational level (≤6 years of education).

3.4. Other Specialized TC Instruments – Comparison with the TCAT

Although the use of the MMSE for the assessment of TC has been criticized, it is still used in everyday clinical practice in legal capacity assessments combined with other tools and is a widely used general cognitive tool. As expected, the comparison of the TCAT with the MMSE showed a clear advantage of the TCAT, in terms of both sensitivity and specificity [19], since it assesses patients’ executive functions and social cognition, not tested by other TC tools (described below), supporting the superior validity of the TCAT [11].

Some Forensic Assessment Instruments (FAIs) have been developed for the contemporaneous evaluation of legal capacity in dementia, including TC. However, the majority of FAIs still lack validation and standardization, limiting their adoption in forensic and clinical settings [1,35]. In their research study, Bolognini et al. [35] describe three FAIs specialized for TC and applied to clinical population with dementia, namely the Testamentary Capacity Instrument (TCI) [36]; the Testament Definition Scale (TDS) [37] and the TCAT [19]. They characterize the TCAT as a brief specialized neurocognitive-based FAI for the screening of cognitive functions relevant to TC in dementia, highlighting the domains such as social cognition not usually assessed by traditional cognitive screening tests. They recommend the use of TCAT within a more extensive TC clinical assessment combined with neuropsychological cognitive evaluation of the testator/trix, both for clinical practice and detection of probable cognitive deficits with a negative impact on TC [35].

The TDS is a short, 6-item rating scale for the evaluation and quantifying of the ability to define “testament,” one specific component of TC and this cognitive ability relies on the repository of semantic-lexical and conceptual representations [37]. The examinee is asked to define testament and the answer is documented as verbatim. As it is highlighted in the systematic review of Aravind et al. [11], TDS is a reliable, easy instrument but it is not based on a widely accepted legal definition, such as the Banks vs. Goodfellow criteria. Other limitations include the potential bias of the consensus validity, the small and homogenous sample and that neither a control group without dementia nor the impact of age or education on the ability to define testament have been tested [11].

The TCI is a structured, interview-based, psychometric measure for assessing and differentiating the TC of cognitively-intact from cognitively-impaired older adults in forensic settings [38,39]. Martin et al. [39] follow an earlier conceptual work in TC [36]. The items of the TCI are administered orally or written and an overall performance score emerges in one of three categories: capable; marginally capable, or; incapable. Limitations of the TCI include the small size of cognitively intact older adults and older adults with ad examined, the fact that the tool is designed for forensic experts and involves a long interview, as well as the need for collateral history [39]. Aravind et al. in their systematic review, describe that TCI is reliable, intended for forensic experts and validated in healthy individuals, but it has limitations such as the long interview, the need of collateral sources of information and other neuropsychological assessment and the non-provision of cut off scores [11].

In their study, Aravind et al. [11] systematically reviewed the existing instruments regarding the standardized, specialized TC assessment. According to the authors, they tried to identify the best evidence-based and clinically pragmatic method to assess TC, namely a time efficient, easily accessed, validated tool which incorporates all elements relevant to TC. They compared the existing TC instruments mentioned above and, similarly to Bolognini et al. [35] they describe the above three (TCAT, TCI, TDS) as the most specialized ones, with good statistical evidence.

Most importantly, Aravind et al. [11] highlight the strengths of the TCAT, namely the: assessment of cognitive domains more specific for TC; well-studied psychometric properties; high levels of internal consistency and criterion validity; satisfactory psychometric properties in individuals with low educational levels; flexible scoring system according to the social situation; no need for collateral information; its validation in both patients (AD mostly) and healthy individuals, and; only minor modifications needed for adaptation in other countries (see normative data in Italian population in the study of Bolognini et al. [35]).

Aravind et al. resume that all three instruments - TDS, TCAT and TCI - have good psychometric properties, but TDS only partially assesses TC and the TCI is designed for research use and is not available for use in everyday clinical practice. They conclude that the TCAT could usefully supplement the clinical assessment of TC, combined with a standardized examination of cognition [11].

3.5. Use of the TCAT in Studies

Additionally to the systematic review of Aravind et al. (2024), some studies have used the TCAT highlighting its strengths and clinical usefulness in everyday practice.

Bolognini et al., in their research study, collected normative data for the TCAT and assessed its convergent validity with standardized cognitive tests and the capacity to define what a ‘testament’ is [35]. They examined 323 neurologically healthy adults of different ages and different educational levels, administering the TCAT along with the Beck Depression Inventory-II (BDI-II, [40]), the MoCA [8], the MMSE [7], the FAB [5] and the TDS [37]. For the adaptation of the TCAT to the Italian language, some items were replaced by considering inter-cultural differences. For example, feta cheese (included in the original Greek version of the instrument) was replaced by parmesan in the Italian version.

The study’s results showed a significant effect for gender, age, education and existence of major depression on TCAT scores, as well as good convergent validity of the TCAT with respect to TC, based on the positive correlation found between the TCAT and TDS. The normative data in the Italian population highlights the use of the TCAT as an adjuvant cognitive screening test in the neuropsychological evaluation of TC. Similarly to Aravind et al. [11], the authors also pinpoint the usefulness of the TCAT in clinical practice, since it evaluates cognitive functions like autobiographic memory and theory of mind which are not measured by traditional screening instruments [35]. Additionally, they propose its use as a complementary screening tool of global cognitive status, since it can provide professionals with a quick, yet reliable, evaluation of decision-making, social cognition and financial capacity. As it is highlighted in the literature and clinical practice, these abilities are strongly related to functional everyday life independence and legal capacity, including TC [35].

Another research study with prototype findings is the one of Tsiakiri et al. [41] which examined TC in first-ever acute ischemic stroke, as well as its relation to demographic and clinical characteristics. The cognitive deficits derived from stroke, related to its severity and location, may impair patients’ TC. For example, they may be incapable of judging clearly, expressing their wishes in a reliable and stable way and/or become vulnerable to undue influence.

It was found that the scores in the TCAT were positively correlated with education and not significantly affected by age or gender, while specific cognitive domains, particularly memory and attention, were independent determinants of TCAT scores. The study’s results overall demonstrate the diagnostic validity and clinical usefulness of the TCAT in stroke and, like the other studies described above, emphasize its strength regarding the unique use of ToM scenario, the evaluation of executive functions and its practical and standardized approach to TC evaluation. The authors highlight the instrument’s utility in predicting expert opinions and its usefulness to consider a patient’s dynamic post-stroke recovery and adapt evaluations of TC [41].

4. Conclusions

The assessment of TC requires the collaboration of both the legal and medical professionals. With their reports and expertise, they can help the Law and the Courts - who are the final “judges” of TC determination - to make a decision [1]. The process of TC evaluation is complex even for non-demented elders and it becomes more demanding in dementia cases which increase in our continuing ageing society. It should take into consideration the situation- and task- specificity nature of TC, while some of the most difficult parameters to assess is the intention/judgment of the individual and the executive functions.

The presence of dementia or a psychiatric disorder should not lead automatically to the conclusion that the patient lacks TC. The neuropsychological instruments may support and strengthen the clinical interview and the specialized forensic approach in the contemporaneous assessment of TC, increasing its reliability [1,11,35]. They may be used as screening tools to identify persons in need of more extensive evaluations. It is well-documented both in the literature and the clinical practice that there is increased need for the development of a time-efficient and easily assessed validated tool for the specialized assessment of TC, which would incorporate all the elements related to TC, such as autobiographic memory, executive functions, knowledge of financial parameters [1,11,19].

In this context, the TCAT is a useful screening specialized instrument for the TC assessment in dementia, which can predict the expert’s opinion and define which testator is clearly capable or incapable or should be referred to a forensic evaluation of TC [19,35]. It has very satisfactory psychometric properties [19] and does not rely on collateral information for financial issues or need any special training for its administration. For the experts, the TCAT may provide corroborative evidence for their judgment, while for the legal professionals, after a brief training, it can be used to screen out the testator/trix who does not need an expert evaluation, because he/she is clearly competent.

It has been proposed as a supplementary tool in the process of TC assessment in everyday clinical practice [11], while its prototype examination - compared to other specialized tools - of executive functions and social cognition, which are major factors for TC, is highlighted in the literature [19,35,41]. The use of the TCAT is also proposed for the screening of cognitive status in general, regardless of TC, along with other cognitive tests [35]. It is pinpointed that the TCAT can be useful for medical practitioners to consider it as a part of a comprehensive TC assessment [11].

Suggestions for Future Studies

More research is needed for the development of a stand-alone instrument which would incorporate all the significant elements influencing TC [11], the neuropsychological background of legal capacity in dementia, the impact of social cognition on TC and the functional abilities of elderly without cognitive impairment [1]. Studies including the use and psychometric properties of the TCAT in various types of dementias and other neurological and psychiatric conditions, as well as its validation in different cultures, are suggested [19,35].