In Romania, in accordance with current law, “the will is the unilateral, personal and revocable act by which a person named testator disposes, in one of the forms required by law, for the time when he will no longer be alive”. The increasing complexity of modern financial and family structures has led to an increase in testamentary disputes, a fact reflected by the large number of forensic examinations in civil cases.

Mental capacity are the majore concerns in the many of issues in elders but the great challenge is its retrospective evaluation, when the patient no longer exists. We focuse on the testator’s mental capacity at the time the will was written.

We present two cases of will contestation in post mortem, in which the testator’s age was 65, respectively 70 years at the time of executing the will.

In the first case the testator dies one month after he signed the will, the cause of death was cardiorespiratory arrest; cervical neoplasm; In the second case the testator dies two years after he signed the will. In both cases the patients did not have a history of neuropsychiatric disorders in the family doctor’s records. The circumstances of the production of a will, including the mental state of the testators and the true wishes of the testators were reconstructed using a psychiatric autopsy, based on the documents provided.

The complexity and subtlety of the problems reflected in these cases highlights the need to go beyond traditional criteria and assess situation-specific factors.

No significant relationships.

Deathbed wills by their nature are susceptible to challenge. Clinicians are frequently invited to give expert opinion about a dying testator's testamentary capacity and/or vulnerability to undue influence either contemporaneously, when the will is made, or retrospectively upon a subsequent challenge, yet there is minimal discourse in this area to assist practice.

The IPA Capacity Taskforce explored the issue of deathbed wills to provide clinicians with an approach to the assessment of testamentary capacity at the end of life. A systematic review searching PubMed and Medline using the terms: “deathbed and wills,” “deathbed and testamentary capacity,” and “dying and testamentary capacity” yielded one English-language paper. A search of the individual terms “testamentary capacity” and “deathbed” yielded one additional relevant paper. A focused selective review was conducted using these papers and related terms such as “delirium and palliative care.” We present two cases to illustrate the key issues here.

Dying testators are vulnerable to delirium and other physical and psychological comorbidities. Delirium, highly prevalent amongst terminal patients and manifesting as either a hyperactive or hypoactive state, is commonly missed and poorly documented. Whether the person has testamentary capacity depends on whether they satisfy the Banks v Goodfellow legal criteria and whether they are free from undue influence. Regardless of the clinical diagnosis, the ultimate question is can the testator execute a specific will with due consideration to its complexity and the person's circumstances?

Dual ethical principles of promoting autonomy of older people with mental disorders whilst protecting them against abuse and exploitation are at stake here. To date, there has been scant discourse in the scientific literature regarding this issue.