A recent case in Bermuda, namely Lauretta Lorna Stoneham v. Bertram Nathaniel Fraser(“Stoneham”), offers interesting insights on the effectiveness of cognitive assessments in determining testamentary capacity.
In Stoneham, the Supreme Court of Bermuda had to decide whether the testator had testamentary capacity when she executed her last two wills, one in May 2018 and the other in November 2018 (collectively, the “2018 Wills”). She had executed four prior wills. In the 2018 Wills, the testator bequeathed two properties to her son, Bertram, who was the defendant in the proceedings. In her four prior wills, she had bequeathed one of the two properties to Bertram and the other property to her daughter, Lauretta, in her first will and to all her five children in the other three wills.
Lauretta challenged the validity of the 2018 Wills by alleging that the testator lacked testamentary capacity and was unduly influenced by Bertram.
The testator had undergone cognitive assessments prior to executing the 2018 Wills. On May 11, 2018, eleven days before she executed her May 2018 Will, the testator underwent the Montreal Cognitive Assessment (“MoCA”), where Dr. Saba scored her 17 out of a total score of 30 and described her cognitive impairment as mild. On October 15, 2018, Dr. Griffith conducted a cognitive assessment and found that the testator had “good cognitive ability in sound judgment…”. On November 2, 2018, Dr. Saba conducted another cognitive assessment.
Two expert witnesses filed a joint report retroactively assessing the testator’s capacity. The experts agreed that Dr. Saba incorrectly scored the MoCA and the correct score was 13 out of 30. They suggested that in light of the correct MoCA score, together with the testator’s family’s concerns in 2018 about impaired short-term memory and impaired function of daily activities, the testator likely had dementia rather than mild cognitive impairment as diagnosed by Dr. Saba in 2018. Further, both experts agreed that Dr. Griffith and Dr. Saba’s assessments fell below the accepted standards for assessing testamentary capacity. The court relied on this evidence and the evidence of the testator’s family members to find that the testator was suffering from dementia in 2018, contrary to the diagnosis of Dr. Saba. The court found that Dr. Griffith and Dr. Saba’s assessments were not sufficiently specific with respect to the task/decision (referring to screening specifically for testamentary capacity regarding the 2018 Wills), situation (referring to circumstances and facts leading to the testator’s decision of disinheriting her four out of five children with respect to one property) and time (referring to the time that the 2018 Wills were executed, i.e., May 2018 and November 2018).
Accordingly, the court held that the testator lacked testamentary capacity when she executed the 2018 Wills, the 2018 Wills were invalid, and granted probate with respect to the testator’s last will that she executed in 2017.
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