The Best Use of Forensic Psychiatrists and Forensic Neuropsychologists in Probate Litigation: Addressing Questions of Testamentary Capacity, Contractual Capacity, and Undue Influence

Mark Levy, MD, DLFAPA | Forensic Psychiatric Associates

Dr. Levy attended Durham University, U.K. (1965-66) and is a graduate of Columbia College (A.B. 1967), the Columbia University College of Physicians and Surgeons (M.D. 1971) in New York as well as the San Francisco Psychoanalytic Institute (1984) in San Francisco. He currently practices clinical and forensic psychiatry, licensed as a Physician and Surgeon since 1972 by the State of California and since 2004 by the State of Hawaii.

He was certified by the American Board of Psychiatry and Neurology in Psychiatry (1981) and Forensic Psychiatry (1999, recertified in 2009, 2019). In addition, he was certified by the National Board of Physicians and Surgeons in both Psychiatry and Forensic Psychiatry (2019).

He is currently an Associate Clinical Professor of Psychiatry in the School of Medicine, University of California, San Francisco, where has been on the faculty since 1977 and since 2000 has taught in the Law and Psychiatry Fellowship. He is also on the Faculty of the San Francisco Center for Psychoanalysis and is the Founder and former Chairman and President of the San Francisco Foundation for Psychoanalysis, a community service outreach organization. He is now also Adjunct Associate Professor of Psychiatry Stanford University School of Medicine.

Since 1975, Dr. Levy has been in full-time private practice, originally of psychiatry and beginning in the 1980’s of psychoanalysis and forensic psychiatry as well. He has been retained as a forensic psychiatric expert in more than 500 civil lawsuits and related matters. He has testified in State and Federal Court on 64 occasions. He has never been disqualified from testifying as an expert by any Court in any jurisdiction where he was retained.

As a result of his service and contribution to the profession, Dr. Levy was designated a Distinguished Life Fellow of the American Psychiatric Association (“DLFAPA”) and has been an active member of numerous local, national and international medical, psychoanalytic, psychiatric and forensic psychiatric organizations, including The American Academy for Psychiatry and the Law. He has published numerous articles and presented countless talks, both in person and via webinars, to attorneys, physicians and the general public on a wide range of forensic psychiatric topics. He has also been interviewed regularly as an expert by the print and broadcast media discussing psychiatric and forensic psychiatric topics of general interest.

In January 2006, Dr. Levy established Forensic Psychiatric Associates Medical Corporation of which he continues to serve as its medical director. In January 2020, together with his colleague, forensic psychiatrist Charles Saldanha, MD, Dr. Levy also established and currently serves as the medical director of Forensic Psychiatric Associates, L.P. (www.fpamed.com), a growing group of forensic psychiatrists and forensic psychologists that develop expert opinions for attorneys and Courts on behavioral issues within a broad range of civil and criminal matters. In addition, famed as a team specializes in assessing psychological injury claims from populations of litigants in mass tort and multi-plaintiff litigation. We have previously been retained in more than two-dozen such cases.

Nancy Hoffman, PsyD | Forensic Psychiatric Associates

Dr. Hoffman received her BA from Dominican University in San Rafael and her PsyD from the APA-accredited California Institute of Integral Studies. She completed an internship at Kaiser Permanente in Vallejo and a two-year postdoctoral fellowship in neuropsychology at Kaiser Permanente in San Francisco. She has been licensed to practice psychology in California since 2005.

As a geriatric neuropsychologist, her areas of specialty in both her clinical practice and her forensic practice include the diagnosis and treatment of various forms of dementia. She also works as an expert witness focusing on issues of capacity, undue influence, and conservatorships in older adults.

She has taught assessment to graduate students at Alliant University in San Francisco. She has also been a leader in the neuropsychological community, serving in various positions on the board of the Northern California Neuropsychology Forum (NCNF) and Division 8 (Neuropsychology) of the California Psychological Association, as well as other professional boards. She regularly speaks to local bar associations and to the general public about capacity and undue influence. Dr. Hoffman has written several articles on these topics and was invited to write a chapter on the assessment of capacity and undue influence in older adults for Forensic Geropsychology: Practice Essentials (APA Books 2018).

She earned a Distinguished Service Award in Neuropsychology from the California Psychological Association in 2016.

Dr. Hoffman currently has a forensic and clinical private practice with offices in San Rafael and Santa Rosa.

Dr. Hoffman has been an independent contractor to fpamed since 2022.

I. Define and differentiate the legal standards for testamentary capacity, contractual capacity, and undue influence, including how they are interpreted through case law and statutory codes | 3:30pm – 3:35pm

II. Identify the clinical criteria used by forensic psychiatrists and psychologists to assess decision-making capacity in elderly individuals, especially in the context of estate planning and contested wills | 3:35pm – 3:40pm

III. Understand the role of mental function assessments, including alertness, attention, memory, and reasoning, in determining an individual’s legal capacity | 3:40pm – 3:50pm

IV. Recognize the challenges and limitations of postmortem assessments and the evidentiary weight of contemporaneous neuropsychological testing | 3:50pm – 4:00pm

V. Apply expert analysis to complex probate disputes through case examples illustrating how forensic evaluators develop and support their opinions | 4:00pm – 4:10pm

VI. Anticipate and rebut claims of undue influence, understanding both the legal framework and the psychological mechanisms at play in vulnerable individuals | 4:10pm – 4:20pm

VII. Evaluate the benefits of retaining forensic experts proactively in high-risk estate planning scenarios to reduce future litigation risk | 4:20pm – 4:30pm