Retrospective Capacity Assessments: Yay or Nay?
The Ontario Superior Court of Justice recently made an important ruling on a voir dire in respect of Dr. Kenneth Shulman’s proposed expert testimony.
This ruling will be of particular interest to estate litigators as it addresses the inherent admissibility of retrospective capacity assessments, amongst other things.
The Court in this instance implemented a form of blended voir dire, wherein Dr. Shulman’s evidence would be received in its entirety and submissions would be made on the issue of admissibility of the expert testimony. In the event that the Court ruled that Dr. Shulman’s evidence was admissible, the evidence obtained during the voir dire would be incorporated as part of the trial record.
The Defendant, amongst other objections, took issue with Dr. Shulman’s testimony on the basis that his testimony was based on a retrospective capacity assessment which was problematic for the following reasons:
- The proposed opinion was based on hearsay evidence and must therefore be excluded; and
- Expert opinion evidence on retrospective testamentary capacity assessments constitutes novel or contested science and is therefore not reliable.
The Court did not accept that Dr. Shulman’s use of certain evidence that has not been proven, and has not been relied upon him for the truth of its contents, prevents the Court from admitting his expert opinion evidence at the threshold admissibility stage. In other words, any such issues could be addressed in reference to the weight of the proposed evidence.
Most interestingly, however, the Court noted that many of the types of medical and psychiatric opinions offered at trial are retrospective in nature and did not agree that retrospective capacity assessments are novel in Ontario courts. The Court specifically noted that the Defendant was unable to identify a single case, since retrospective testamentary capacity assessments were first considered by the courts, in which psychiatric expert opinion of retrospective testamentary capacity assessment has been ruled inadmissible.
In applying the admissibility test established in R v Abbey 2017 ONCA 640, the Court held that Dr. Shulman’s expert opinion satisfied the threshold requirement in the first step. In weighing the cost versus benefit of admitting Dr. Shulman’s report, the Court found that the evidence favoured the admission of Dr. Shulman’s evidence.
The Court made a ruling admitting Dr. Shulman as an expert geriatric psychiatrist to provide expert opinion evidence in the areas of geriatric psychiatry and retrospective testamentary capacity assessment.
This is an important ruling in the context of estate litigation given that in most instances, the capacity assessments that are usually relied on in the course of litigation are of a retrospective nature, since the subject of the assessment is most often deceased.
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