In Banks v Goodfellow, the English High Court laid out the benchmark test for assessing testamentary capacity. To this day, it has stood the test of time. Subsequent cases have served to focus and clarify aspects of it. The recent decision of the Ontario Superior Court of Justice in Kay v Kay Sr. is such a case. In Kay v Kay Sr., the court provides a helpful review of the law regarding testamentary capacity, specifically the weight that is to be given to the drafting lawyer’s assessment and a posthumous testamentary capacity assessment.

Facts

The deceased, Annie Wotton, died on August 26, 2019, at the age of 95. Mrs. Wotton created a will in 1992 which essentially left everything to her son, John. It also provided that John, along with her husband, Jack, were to be appointed as joint executors.

Medical assessments conducted in November 2009, September 2010 and October 2010 noted that Mrs. Wotton had a mild to moderate form of dementia. The assessments stated that Mrs. Wotton’s memory was moderately impaired and that her cognitive abilities were progressively declining.

In November 2010, another will was prepared by Mrs. Wotton. The drafting lawyer, Mark Ouimet-McPherson, met with Mrs. Wotton and assessed her capacity. Mr. Ouimet-McPherson believed that Mrs. Wotton had testamentary capacity so he took her instructions and prepared and executed the documents. The new will stipulated that the residue of the estate was to be divided equally amongst John and two of Mrs. Wotton’s three grandchildren: Cindy and John Jr. It also named John as estate trustee, with Cindy as the alternate.

At the time of Mrs. Wotton’s death, John had advanced dementia and was incapable of acting as estate trustee. John’s wife, Rosemary, acted as his litigation guardian and filed a Notice of Objection to Cindy’s application for a Certificate of Appointment of Estate Trustee. Rosemary’s objection was based on the fact that the November 2010 will should be declared invalid as Mrs. Wotton lacked testamentary capacity at that time.

In 2019, a posthumous testamentary capacity assessment was conducted by Dr. Francine Sarazin. Dr. Sarazin found that “there [was] reasonable evidence in support of a determination of incapacity when Mrs. Wotton gave instructions to draw up a last will and testament.”

The Decision

The court relied on O’Neil v. Royal Trust Co. and Vout v. Hay to summarize the legal principle regarding the onus of testamentary capacity: A presumption of capacity exists until it is shown that suspicious circumstances existed regarding the preparation of the will. If suspicious circumstances exist, that presumption is no longer in effect and the onus then shifts to the party propounding the will to prove that the testator had testamentary capacity.

Since medical evidence found that Mrs. Wotton suffered with a form of mild to moderate Alzheimer dementia at the time of signing the 2010 will, and due to Mrs. Wotton’s age and the changes between the two wills, the court determined that the onus should shift to the propounder of the November 2010 will to show capacity.

The court accepted the posthumous assessment of Dr. Sarazin, but the assessment was only afforded a modest degree of weight for the following reasons:

• Since it was a retrospective capacity assessment which went back nine years, the court thought that it was not very reliable;
• The assessment was not an exhaustive review of Mrs. Wotton’s life in and around the time she signed the will; and
• Cindy’s material was not provided to or reviewed by the assessor.

The court then turned to Mr. Ouimet-McPherson’s evidence. In his meeting with Mrs. Wotton, Mr. Ouimet-McPherson filled out a checklist for her. Based upon Mrs. Wotton’s answers to Mr. Ouimet–McPherson’s questions, her knowledge of her family and her assets, he was satisfied that Mrs. Wotton had testamentary capacity.

The court also took other evidence into consideration, such as the medical assessments conducted in November 2009, September 2010 and October 2010. While the assessments provisionally diagnosed Mrs. Wotton with a mild to moderate form of dementia, they noted that she was able to manage daily living on her own as well as her finances.

The court took this evidence and applied it the Banks v Goodfellow test:

• Understanding the nature of the act of making a will and its consequences: At the meeting with Mr. Ouimet-McPherson, Mrs. Wotton commented that she wanted to be fair and avoid disputes. This demonstrated that she likely understood the consequences of what she was doing.
• Understanding the extent of one’s assets: In general terms, Mrs. Wotton knew the assets she owned. Although she could not recall specific details such as knowing whether her life insurance lapsed or the last statement of her bank account, Mr. Ouimet-McPherson felt that Mrs. Wotton responded appropriately for someone her age.
• Understanding the claims of those who might expect to benefit from the will, both of those to be included and excluded: From Mrs. Wotton’s instructions, it seems as if she knew she was changing her 1992 will to divide her assets three ways as opposed to leaving everything to John.
• Any disorder of the mind or delusions: Mr. Ouimet-McPherson’s evidence seems to suggest that Mrs. Wotton knew what she was doing at the time the will was executed and was not suffering from any delusions or disorders of the mind that impacted her intentions.

After considering all of the above, the court ultimately concluded that, at the time the November 2010 will was executed, it was more likely than not that Mrs. Wotton had testamentary capacity. As such, Cindy was named as the Estate Trustee.

Kay v Kay Sr. provides a helpful review of the test for testamentary capacity as set out in Banks v Goodfellow. It emphasizes that testamentary capacity is to be determined based on the facts and circumstances of each case. The drafting lawyer’s assessment plays a major role in assessing capacity. A posthumous testamentary capacity assessment may also be given considerable weight if it is conducted around the time the deceased’s capacity was in question and if the assessor’s review of the deceased’s life around the time they signed the will is fairly extensive.

Thanks for reading – Have a great day!
Ian Hull and Celine Dookie