Statistics Canada has projected that by 2050, the number of Canadians living with some form of dementia will have grown by 187% from current levels, in tandem with Canada’s aging demographics. This expected increase in per-capita rates of cognitive impairment will coincide with a generational transfer of wealth in Canada – representing a ‘perfect storm’ for estate litigation, as an allegation of a testator’s lack of testamentary capacity is perhaps the most common basis for a Will challenge.
According to data published by the Ontario Superior Court of Justice, 3,263 new wills and estates proceedings were commenced in 2024, adding to the total of 6,670 active before the Court.
The rates at which estates in Ontario are challenged remained relatively static for two decades, with undue influence and lack of testamentary capacity remaining the most common allegations on which a Will challenge is predicated. The litigation surge that these numbers portend will continue to strain the existing bandwidth of qualified capacity assessors, and the infrastructure that supports them. This role is particularly critical in respect of contemporaneous assessments of testamentary capacity, as the assessment process allows for prospective testators (often on the advice of their drafting solicitor) to document their ability to instruct and execute their testamentary planning. While tools such as the MMSE are commonly performed in respect of an individual’s capacity, the MMSE for example is designed as a general cognitive screening tool, measuring orientation, registration, attention, recall, and language in a standardized manner. However, as has been frequently set out by both scientific literature and case law, testamentary capacity is inherently task-specific and situation-specific. A person might score poorly on the MMSE’s serial sevens calculation while retaining perfect understanding of their family relationships and assets. Ultimately, a qualified assessor is more able to probe the nuances of an individual’s understanding of their estate plan, as well as their appreciation of its impacts than can be identified by a single evaluation tool.
One problem, however, is that the requisite training and experience required to make an assessment of testamentary capacity can take years to develop. While resources can be dedicated to increasing the availability of individuals able to provide testamentary capacity assessments, the most realistic scenario is that demand for these medico-legal services will continue to outstrip their availability. So, with this likely shortfall in mind, can technology provide some relief? It appears that the answer is yes. Researchers applying artificial intelligence to the study of dementia and Alzheimer’s have found that in a clinical setting, the baseline accuracy rate of 71% for MMSE tests alone could be improved to a rate of 97.2% through a clinician’s use of an AI-assisted tool that incorporated not only features of the MMSE, but also linguistic and episodic memory features.
Another important consideration is the comfort and dignity of the prospective testator participating in the capacity assessment. It is true that not all individuals are necessarily comfortable with technology (particularly novel applications like AI). However, some preliminary research has indicated that with certain tasks similar to capacity assessments, individuals who are sensitive with discussing their own mental acuity feel fewer negative emotions when having these discussions with an AI-driven solution – theorized to be due to the lack of a “judgemental” person performing the assistive activity.
For now, AI tools involved with the assessment of testamentary capacity are best-situated to be decision support systems, and should not be used to supplant the role of the assessor entirely. However, it is likely that their role in medico-legal assessments will expand, and ultimately, that they will contribute positively by providing greater degrees of clarity regarding testators’ capacity during their lifetimes – and avoiding an unfortunate estate dispute following their passing. In the interim, assessors and lawyers alike should make efforts to become more familiar with the assistive role of these technologies, in order to best serve their clients and the public as a whole.
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