When a will is challenged on the basis of testamentary capacity, one of the first considerations is whether the testator underwent a capacity assessment during their lifetime. Unfortunately, when it turns out that their capacity was never formally assessed, this presents a challenge for both sides of the proceeding. In this situation, a retrospective capacity assessment may be done by a medical professional. A retrospective capacity assessment usually involves a review of the testator’s medical records, any relevant lawyers’ files, and any other relevant material. The retrospective capacity assessor will conduct their assessment in the context of the legal test for capacity.
In will challenge cases, the medical records are often crucial. As these records may be some of the only evidence available that speaks to the testator’s condition and state of mind, it is vital that judges are able to understand the technical points and the effect of the evidence that is found in the records. However, most judges do not have the specialized medical knowledge required to come to a fulsome understanding of the evidence and come to the proper conclusions. Particularly given the frequently voluminous amount of medical records that may be produced by hospitals and health-care institutions for a particular patient, it can be difficult to wade through and identify the key elements. As such, the use of experts who do, in fact, possess specialized medical knowledge is important in order to assist judges.
However, even the presentation of technical medical evidence by a medical professional can be complicated and time-consuming. One method of presenting expert evidence, referred to as “hot tubbing”, originated in Australia and involves a process whereby all experts in a proceeding present their evidence concurrently, as a panel. Some of the benefits linked to this type of presentation include shortening the length of expert evidence in order to make a more efficient use of the court’s time, and assisting the judge in understanding the complexity and volume of the evidence.
This type of presentation of expert evidence may be useful in the case of a will challenge, where there is disagreement between opposing parties’ experts, and voluminous medical evidence that must be presented. “Hot tubbing” allows the experts to be questioned together. As such, it can help emphasize the key issues, the areas where the experts disagree, and the areas where they agree. By identifying areas of agreement, this can help reduce the time spent on those areas, and free up more time to focus on contentious matters. “Hot tubbing” can also identify where the experts may have made different assumptions and how this has affected their conclusion, and can also allow for a more debate-like discussion, where experts can challenge the other’s evidence and provide further evidence to support their own, opposing position.
The practice of “hot tubbing” is not frequently used in Canada. It can also have its downsides if one expert tends to dominate the other in presenting their evidence, or if the experts do not respond well to the more collaborative approach. As with any presentation of evidence, it can be difficult to predict exactly how it will come out at the time of trial. It takes planning and preparation to ensure that evidence is presented as efficiently and clearly as possible.
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