Recently I have started to wonder if the intersection between mental health and capacity issues is underrepresented in caselaw relative to its instances in reality.
The Nova Scotia Court of Appeal was recently tasked with considering the validity of a holograph will that was made by a testator who was known to struggle with mental health issues throughout his life in Devlin Estate (Re), 2022 NSCA 33. The trial judge in Devlin had described the testator as:
“a man who struggled throughout his life with significant mental illness. This was managed with medication, but unfortunately from time to time he would decompensate. Then he would alternate into periods of suspicion, paranoia, and physical neglect. He would rail against his neighbours, friends, and others in the community and many local businesses.”
Mr. Devlin met the appellant, Catherine Summerfield, in 2016 at a café that was owned and operated by Ms. Summerfield. That same year, Mr. Devlin made a will with the assistance of a lawyer which provided for a number of gifts to various individuals and charities. The 2016 Will did not include Ms. Summerfield. In 2018, Ms. Summerfield moved to British Columbia and where she received “love poems and entreaties [from Mr. Devlin] for her return to live with him”.
In October, 2018, Ms. Summerfield received a handwritten signed document by mail that was titled the “Last Will and Testament of Michael John Devlin dob 30/3/1944”. This document provided gifts to three charities, a cousin in England, and the residue of the estate to Ms. Summerfield.
In a trial for proof in solemn form, the trial judge found that the handwritten signed document met the due execution requirements for a holograph will but the holograph will was found to be invalid because Ms. Summerfield was unable to persuade the court that Mr. Devlin had the requisite testamentary capacity to make a valid will given the suspicious circumstances that surrounded Mr. Devlin’s situation when the will was made in 2018. The suspicious circumstances were based on five findings of fact by the trial judge:
i. Mr. Devlin had reported to several of the witnesses that he had stopped taking medications prescribed to stabilize his mental health, prior to the time when the will was prepared;
ii. Mr. Devlin’s bi-polar disorder was known to those around him, who testified the nature and severity of it interfered with his life, and that he had “descended into a spiral as his physical and mental health deteriorated”;
iii. Mr. Devlin was experiencing “serious physical and mental impairments” around the time the will was made;
iv. Mr. Devlin had serious physical impairments that were becoming more aggravated during the time period of the making of the will; and
v. Mr. Devlin had “significant personal dysfunction” at the time prior to his death.
The Court of Appeal upheld the trial judge’s reasoning because it was clear to the panel that the trial judge did not conclude that Mr. Devlin lacked capacity because he was bi-polar, rather that it was his bi-polar condition that led to the conclusion that there were suspicious circumstances afoot which shifted the burden of proof on Ms. Summerfield.
Of interest to estate litigators in all provinces, the Nova Scotia Court of Appeal made an interesting comment about Banks v. Goodfellow which dates back to 1870 and how the
“reasonable modern use of the word [delusion] is likely more akin to referencing a mental health condition, as opposed to “delusion” per se, which would interfere with a testator’s decision-making process” (at para. 29).
Thanks for reading!