The case files of will drafters with demented clients should contain medical facts relevant to the progress of the client's brain disease. If a will contest occurs, a forensic psychiatrist, at a much later date, will need knowledge of the existence of certain facts to buttress an opinion that affirms legal capacity at the time of the will execution. A brief discussion of mental functioning, dementia and Alzheimer's disease and testamentary capacity will highlight the need for contemporaneous recording of the existence of medical facts relative to the state of the brain disease.

Mental functioning. Intelligence can be defined as the composite of many individual and shared brain functions. The abilities to remember, think abstractly, reason and judge are the parts of intelligence most at issue in testamentary capacity. These abilities may be separately evaluated. An impairment of one ability does not cause an impairment in remaining abilities. Short-term memory is lost to dementia before long-term memory. An Alzheimer's victim may remember his children's birth dates and not what he had for breakfast. He is likely to remember assets acquired long ago (home, vacation property, bank and security account) and forget about the more recently purchased investment. Beware of the client who forgets his children's names or his home address. The loss of long-term memory signals serious deficits in mental functioning. The ability to think abstractly is routinely evaluated by asking the interviewee to explain a proverb. The brain that can grasp the meaning of "a stitch in time saves nine" can grasp the legal significance of signing a will. Reasoning and judgement can be illustrated by the client's explaining the disposition scheme of the proposed will. Leaving assets to children or a favorite charity seems, at first blush, more the product of a brain that can judge and reason than leaving assets to a pet.

Dementia and Alzheimer's disease. Dementia is medically defined as a loss of intellectual ability resulting in impairment of social and occupational functioning. Over 80% of all dementia occurring in persons over age sixty-five is of the Alzheimer's type, which is irreversible and progressive. Alzheimer's disease may present with a variety of functional disabilities affecting personality, behavior, speech, language, etc., but key to the diagnosis is the loss of short-term memory. Rate of functional deterioration varies widely. Some patients may exhibit marked personality changes and loss of social graces, while another's disease may involve striking loss of comprehension of speech. The variety of disease presentation is related to the sites of damage. Over the course of time as more and more cortical damage occurs, the variety of symptoms disappears. The progression continues towards a vegetative state. In the early stages of dementia, many individuals have the capacity to recall details of their assets, family members, previous wills, life history, etc., but later those recollections may be lost, at first intermittently and finally permanently.

Testamentary capacity. A demented client may retain testamentary capacity. The commonly held false assumption that dementia robs a client of capacity for any decision is based on a lack of understanding of the varied courses of brain disease and the progressive loss of brain function that occurs over time. In recognizing these differing levels of capacity, the Supreme Court of Virginia has upheld the validity of a will executed after a guardianship was instituted for a testator1 Virginia case law defines testamentary capacity as present if the testator knows the natural objects of his bounty, his assets and understands the nature of executing a will. Lack of testamentary capacity would occur if a client has any one of three deficits: 1) no memory of his family; 2) no generalized memory of his assets; or 3) no ability to think abstractly (i.e. comprehend that signing a will affects his family in specific financial ways).

Medical facts note taking. The advocated approach of noting medical facts in the case file should be followed when the following three factors are all present:

1. There is a reason to suspect capacity, possibly because of a dementia diagnosis.
2. The disposition scheme of the proposed will follows intestate succession and does not change a previous will. Extensive note taking may not be enough if it becomes apparent during the will interview that disgruntled heirs loom in the future. Prudence could dictate a recommendation of a psychiatric consultation even if the drafter's observations support testamentary capacity. If the will follows intestate succession, not only is there minimal likelihood of a contest, but the "normal" disposition scheme itself suggests testamentary capacity.
3. The client is not under the care of a psychiatrist If a psychiatrist is readily available, the safe course of a telephone consultation followed by a psychiatrist's letter opining the presence of capacity is easily followed.

The following medical facts, or evidences of testamentary capacity, should be noted in the file:

1. Does client know his full name, address, birth date, schooling and job? Can client relate the names and ages of children?
2. Can client tell you the types of assets he owns and their approximate value? Can client relate specifics about heirs and any previous wills? Even if a family member accompanies client to your office to help with financial information, questioning should begin with client, and file should indicate the facts client gave you.
3. What is client's involvement in bill paying, balancing checkbooks and asset investment?
4. How is client's vocabulary? Does he search unsuccessfully for words or make up words?
5. Client's appearance and demeanor. Are there any "oddities" in either?
6. Did client drive to the interview? Driving requires complex intellectual tasks.
7. Does client live alone? If so, client is able to perform activities of daily living (feed, dress) for himself.
8. Does client know today's date?
9. Can client explain the meaning of a proverb?

Summary. Because of the progressive nature of the disease, the Alzheimer's client will get worse after the will execution. The memories of observers will become cloudy as to which functions were intact and which functions were impaired at the time of the will execution. The drafter's contemporaneous notes of facts underlying assessment of testamentary capacity will be the strongest defense of the will. The drafter must record the facts in the case file so that an expert witness can later formulate an opinion that affirms testator's capacity at the time of execution of the will. The drafter will produce this contemporaneous documentation.