In McAndrew Estate (Re), 2020 ABQB 614, Mr. Justice Nicholas Devlin starts his decision with reference to the late Patricia McAndrew’s three wills by saying: ”Her brother, supported by two of her children, asserts that her 2012 holograph will, is valid and should prevail. In the alternative, he advances a 2011 will, drafted with the aid of her solicitor. Her daughter Diane asserts that Ms. McAndrews lacked the capacity to execute either of the latter wills and that the holograph in particular was the product of undue influence. Consequently, she asks the Court to endorse Ms. McAndrew’s original 2005 will which, not surprisingly, leaves her the preponderance of the estate. On this familiar landscape of familial discord, the contest of wills is joined.”
The decision was released on October 14, 2020, in Calgary and is interesting for procedural and other reasons, but, the decision revolves around the issue of the deceased’s capacity. Justice Devlin’s decision reviews and reinforces current legal concepts and states, “…capacity is not a “bright line” or “threshold” question; rather, it is both time- and task-specific. A person who lacks capacity at some points in time may have other periods of lucidity. Further, a person may have the capacity to undertake some tasks, but not others.”
He reiterates from Scramstad v Stannard ABQB 1996 188 AR 23 at para 130: “In my view, it is important to keep in mind at all times the instruction contained in Goodfellow, to the effect that: just because a person’s mind and memory is not what it used to be, does not mean that such person lacks testamentary capacity; the test to determine testamentary capacity is not therefore one of certainty or satisfaction beyond a reasonable doubt. Rather, based on the authorities referred to, in my view the test is one that can be answered by a layman possessed of good common sense based on everyday experience and judged on a “balance of probabilities” that is: is it more probable than not, having regard to all of the evidence that a person at the time such person made his or her Will possessed or did not possess a disposing mind and memory to “clearly and discreetly judge, all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament”.
He also adds, “… capacity in general, and testamentary capacity in particular, is a legal question, not a medical one. While medical evidence can and often does inform the legal assessment, such evidence is not necessarily determinative. In Stevens v Morrisroe, 2001 ABCA 195 at para 19, Picard JA stated: “Soundness of mind is a practical question and does not depend on scientific or medical definition. As Feeney said, supra, at p. 33 “Medical evidence is not required, not necessary nor necessarily conclusive when given. “
In this case, the decision was that the deceased had testamentary capacity and the 2012 holograph will was admitted to probate.
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