In an article appearing in the most recent issue of the Journal of the American Academy of Psychiatry and the Law (JAAPL) (September 1, 2015 vol. 43 no. 3 287-292), by Shulman, Hull, et al., entitled “Cognitive Fluctuations and the Lucid Interval in Dementia: Implications for Testamentary Capacity,” the authors introduce a significant new challenge to Will Contest litigation allegations that testamentary capacity existed during a “lucid interval.” (see Cognitive Fluctuations and the Lucid Interval in Dementia- Implications for Testamentary Capacity) According to the authors, current clinical research does not support the widely used legal notion of a “lucid interval” during which period of time a person with dementia may have sufficient cognitive ability to possess the testamentary capacity to execute or modify testamentary documents. Rather, in the words of the authors,

The literature on cognitive fluctuations in dementia shows that such fluctuations largely affect attention and alertness, rather than memory or the higher level executive functions that are essential components of testamentary capacity. Moreover, these fluctuations are small in magnitude and very short in duration. These findings cast doubt on the validity of the lucid interval and invite a critical rethinking of this legal concept as applied to will challenges involving testators with dementia.

In “Commentary: Contested Wills and Will Contests” by Merikangas (J Am Acad Psychiatry Law September 2015 43:293-297), following the above cited article, the author embraces Shulman et al.’s call for abandoning the archaic legal notion of “lucid interval” in light of modern medical knowledge about neurocognitive functioning in dementia (as opposed to in delirium). Furthermore, he calls for the use of formalized neuropsychiatric autopsy procedures when attempting to analyze retrospectively the presence, or absence, of testamentary capacity in demented and deceased testators.

This article may foreshadow a whole new line of argument requiring expert testimony in Will Contest litigation.