As noted in Suzana’s blog last week, all parties during estate litigation must have sufficient capacity to participate in the proceedings: see The Level of Capacity Needed to Participate in Estate Litigation. This raises an important question – what should a party do if there are concerns that another party to the litigation does not have the requisite level of capacity?
One potential solution is to request a capacity assessment. This relief was granted in Gefen v. Gefen et al., 2022 ONSC 3378 in light of a variety of factors, including:
- the estate trustee was 98 or 99 years old;
- the nature and circumstances of the proceedings put the estate trustee’s capacity front and center;
- the nature and quality of evidence before the court as to the estate trustee’s capacity was deficient;
- the estate trustee’s capacity had not been assessed since 2014;
- there was the potential for harm if an assessment was not completed;
- there was urgency to complete an assessment in light of the proceedings; and
- the estate trustee had put no evidence before the court; as a result, her wishes were unclear to the Court.
After the estate trustee’s capacity was formally assessed, Justice Gilmore found that the estate trustee did not have capacity to instruct counsel, appointed a litigation guardian, and removed counsel for the estate trustee: see Gefen v. Gefen et al., 2022 ONSC 6259, affirmed on appeal 2023 ONCA 406.
The outcome in Gefen aptly demonstrates that if a litigant believes another party lacks capacity, the court can provide relief. However, it is important to bear in mind that a party is presumed to have capacity to instruct counsel. That means that the litigant who alleges that another party does not have capacity to participate in the proceedings will bear the onus of proof regarding capacity. The party whose capacity is at issue will not be required to prove his or her capacity in the face of mere allegations, as confirmed by the court in Neumiiller v. Neumiiller (Estate), 2022 SKQB 177.
When addressing the capacity needed to participate in litigation, it is also important to remember that capacity is task specific and that varying levels of capacity are required for different decisions. It could be dangerous to argue that a person does not have capacity to participate in litigation because that individual does not have capacity to perform other legal tasks, such as enter into a contract.In fact, the Saskatchewan Court of Appeal found in Hess v. Thomas Estate, 2019 SKCA 26 that if the court conflatesthe capacity needed to instruct counsel with the capacity needed to perform another task, appellate interventionmay be warranted.
Thank you for reading, and have a great day!