I’ve recently had the pleasure of reading “The Impact of Alcohol on Testamentary Capacity” by Dr. Arlin Pachet, John E.S. Poyser, and Ryan H.K. Gorlick, which can be found in the Estates, Trusts and Pensions Journal, Volume 42.

In part one of this two-part blog series, I delve into the applicable law surrounding alcohol’s impact on testamentary capacity. Part two, which will be released on Friday, will discuss how controlling a testator’s access to alcohol could amount to undue influence, inclusive of practice recommendations for lawyers dealing with cases wherein alcohol may be a factor.

As one consumes more and more alcohol, their cognitive powers are negatively impacted at an increasing measure. Eventually, long-term alcohol use results in brain damage, which can then lead to persistent cognitive issues, such as dementia, which becomes a baseline cognitive deficit.

Testamentary capacity is a separate but related issue that can be negatively impacted by alcohol consumption.

Banks v. Goodfellow Test

Briefly, Banks v. Goodfellow lays out three elements necessary to find testamentary capacity: (1) effect of will; (2) extent of assets; and (3) objects of bounty. Further, one exception must be absent: disorders and delusions of the mind.

In 2017, Dr. Kenneth Shulman et al., wrote a paper entitled, “Banks v. Goodfellow (1870): Time to Update the Test for Testamentary Capacity”. The authors included doctors, lawyers, and a judge. Essentially, the paper points out that a larger range of disorders can impact a testator’s capacity. They proposed an updated test for testamentary capacity as follows:

The testator must be:

1. Capable of understanding the act of making a will and its effects;
2. Capable of understanding the nature and extent of their property relevant to the disposition;
3. Capable of evaluating the claims of those who might be expected to benefit from his estate, and able to demonstrate an appreciation of the nature of any significant conflict and/or complexity in the context of the testator’s life situation;
4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and
5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

The fifth point essentially expands the delusions exception to increase its scope, dealing more broadly with disorders of the mind. Some Canadian cases have already adopted this expanded approach, while others have not.

Canadian Case Law Dealing with the Impact of Alcohol:

McGrath v. Joy

In 2022, the Ontario Court of Appeal released its decision in McGrath v. Joy, wherein a suicide note was ultimately accepted as a last will and testament. After drinking and smoking hashish throughout the day, the deceased fought with his wife just before she went to bed. When she awoke the next morning, she found him hanging in front of their bedroom door with a suicide note in his pocket. The note made it clear she was to get nothing from his estate.

Speaking for the Court of Appeal, Justice Gillese held:

It is an error to infer a lack of testamentary capacity based on a person’s use of alcohol and drugs. If a testator suffers from a disorder or condition that may impact on his or her testamentary capacity that matter should be considered when applying the relevant legal principles for determining testamentary capacity.

In finding the suicide note to be a valid will,  the Court commented on the absence of any diagnosed disorder of the mind:

In the present case, there is no evidence that Mr. Joy had a disorder or condition that could support a finding of a lack of testamentary capacity. He had never been diagnosed, treated, or hospitalized f or alcoholism, a substance disorder, or other mental health challenges.

Essentially, Justice Gillese suggests the Court was looking for, and was willing to consider, a “disorder of the mind” but sought a medical diagnosis from a doctor. If that were the case, in this instance, the issue was treated as closed for the deceased “had never been diagnosed.” Notably, a finding under the Banks test has never demanded a diagnosis by a doctor.

Meunier Estate

Meunier Estate, released in 2022 by the Alberta Court of Queen’s Bench, involved a man who dictated the terms of his will while sharing some drinks with a friend. The validity of the will was challenged. The evidence demonstrated that he only drank approximately three beers and drove himself home afterwards. The law can be summarized as follows:

Proof that the testator was intoxicated at the time of making a will is not sufficient in itself to warrant an assumption of testamentary incapacity; however, heavy drinking may support a finding that the alleged testator did not have capacity…

Ultimately,  the case law states that just because someone has been drinking does not, by itself, invalidate a will, but excessive drinking may.

Dujardin v. Dujardin Estate

In this 2016 case, the Ontario Superior Court considered the validity of wills executed by a testator suffering from chronic alcoholism. The testator made two wills (one personal and one corporate), benefiting his brother. His wife challenged the wills on the basis of a lack of testamentary capacity, specifically claiming the testator suffered from “organic brain disease” brought on by chronic alcoholism. His brother put forth extensive evidence to support the testator’s capacity and the court found such evidence relevant and persuading.

The Court found that the medical evidence was insufficient to support a finding that the testator suffered from a debilitating mental condition impacting his testamentary capacity. They were unable to find any specific evidence linking the disease to any formal impairment as a result of alcohol abuse. Despite the testator’s chronic alcoholism, there was no evidence presented to show any cognitive impairment affecting his testamentary capacity at the time he executed his wills. In fact, the trial judge found there was ample evidence to support the testator having the requisite testamentary capacity. “Chronic alcoholism, on its own, is not enough”;  a mere diagnosis of organic brain syndrome doesn’t carry weight without supporting evidence of actual loss of mental function.

Accordingly, the testator’s wife appealed on the grounds that the trial judge erred in finding that  (1) the doctor’s expert evidence on testamentary capacity was inadmissible; (2) the testator knew and approved the contents of the wills; (3) the testator possessed testamentary capacity; and (4) the wills were properly executed.

Ultimately, the appeal was dismissed for the following reasons:

1. Admissibility of Doctor’s Evidence: The doctor retained by the wife to opine on the testator’s capacity had never actually met the testator; he based his opinion on the discovery transcripts and other litigation documents. The trial judge thus refused to admit the expert’s evidence, which merely raised the possibility that the testator may have suffered from a cognitive impairment. The Court of Appeal saw no error in this conclusion.
2. Instructions to Prepare Wills: The Court of Appeal dismissed this ground of appeal as it was not listed in the wife’s Notice of Objection, nor did she raise it at trial.
3. Validity of the Wills: The testator’s brother successfully proved that the wills were compliant with the Succession Law Reform Act on the basis of evidence. The Court of Appeal saw no reason to divert from this finding.

Accordingly, the Court of Appeal agreed with the trial judge’s finding that the evidence supported the testator having testamentary capacity under the Banks test. Overall, despite the testator’s chronic alcoholism, the medical evidence must support the finding that the testator lacked capacity when executing the will.

Stay tuned for part two this Friday!

Thanks for reading,

Shawnee