A recent case from the Quebec Superior Court examined whether a testator lacked capacity to execute his second Will due to his dementia, as well as his inability to manage his personal finances.

In Succession de De Feo, 2023 QCCS 1532, the Royal Trust Company sought to confirm the testator’s Will from 2007. The Royal Trust Company is the executor of the Will, and the testator’s friend, Mr. Paolella, who passed away two days after testator, was the designated beneficiary.

Mr. De Feo, who is the testator’s nephew, opposed the application, claiming that his uncle lacked the mental capacity to execute a new Will due to his deteriorating health. Specifically, Mr. De Feo claimed that his uncle suffered a stroke in 2004, which was likely what caused him to develop dementia. Instead, he argued that the testator’s previous Will from 1999, which named his brothers and their children as beneficiaries, should prevail.

Among the evidence that was presented to the court were two medical opinions dated January 2007, which found that the testator was incapable of managing his own affairs. Mr. De Feo relied on this evidence and attempted to demonstrated that the testator could not manage his personal finances. On that point, the court made an important distinction between having testamentary capacity and having the ability to manage one’s finances. The court stated that while the two issues “may be related, they are not the same.” Managing finances requires an ability to pay bills, consider expenses and if necessary, stick to a budget. However, making a Will involves deciding how best to distribute one’s assets after death. While this evidence pointed to the testator’s difficulty with financial matters, it did not conclusively establish his inability to comprehend the nature and consequences of making a Will.

The court also examined the circumstances surrounding the execution of the 2007 Will. The contested Will contained three new provisions: the revocation of a Will from 1999, the appointment of the Royal Trust Corporation as the executor, and the designation of Mr. Paolella as the sole beneficiary. The court deemed these provisions objectively reasonable, as the execution of the new Will happened after testator had a falling out with his brother and his nephew, who were managing his property and had transferred him to five different long term care facilities in three years.

Ultimately, the court confirmed the 2007 Will. Mr. De Feo failed to provide sufficient evidence to undermine the testator’s capacity to make the 2007 Will, and the document was deemed reasonable when considered in the context of the breakdown in the relationship between testator and his brother that occurred before 2007.

It is important to note that this case comes from a civil law jurisdiction and should be considered with caution. While there are some similarities in law, particularly with regards to the difference between capacity to manage property and capacity to make a Will, the two legal systems are different. Nonetheless, this case serves as a reminder that cognitive decline and the inability to handle personal finances do not automatically disqualify someone from having the capacity to execute a valid Will, or understand the consequences of same. For more on testamentary capacity, please refer to our blog from last week.

Thank you for reading.

Margarita Grup.