The Ontario Superior Court of Justice recently made an important ruling on a voir dire in respect of Dr. Kenneth Shulman’s proposed expert testimony.
This ruling will be of particular interest to estate litigators as it addresses the inherent admissibility of retrospective capacity assessments, amongst other things.
The Court in this instance implemented a form of blended voir dire, wherein Dr. Shulman’s evidence would be received in its entirety and submissions would be made on the issue of admissibility of the expert testimony. In the event that the Court ruled that Dr. Shulman’s evidence was admissible, the evidence obtained during the voir dire would be incorporated as part of the trial record.
The Defendant, amongst other objections, took issue with Dr. Shulman’s testimony on the basis that his testimony was based on a retrospective capacity assessment which was problematic for the following reasons:
- The proposed opinion was based on hearsay evidence and must therefore be excluded; and
- Expert opinion evidence on retrospective testamentary capacity assessments constitutes novel or contested science and is therefore not reliable.
The Court did not accept that Dr. Shulman’s use of certain evidence that has not been proven, and has not been relied upon him for the truth of its contents, prevents the Court from admitting his expert opinion evidence at the threshold admissibility stage. In other words, any such issues could be addressed in reference to the weight of the proposed evidence.
Most interestingly, however, the Court noted that many of the types of medical and psychiatric opinions offered at trial are retrospective in nature and did not agree that retrospective capacity assessments are novel in Ontario courts. The Court specifically noted that the Defendant was unable to identify a single case, since retrospective testamentary capacity assessments were first considered by the courts, in which psychiatric expert opinion of retrospective testamentary capacity assessment has been ruled inadmissible.
In applying the admissibility test established in R v Abbey 2017 ONCA 640, the Court held that Dr. Shulman’s expert opinion satisfied the threshold requirement in the first step. In weighing the cost versus benefit of admitting Dr. Shulman’s report, the Court found that the evidence favoured the admission of Dr. Shulman’s evidence.
The Court made a ruling admitting Dr. Shulman as an expert geriatric psychiatrist to provide expert opinion evidence in the areas of geriatric psychiatry and retrospective testamentary capacity assessment.
This is an important ruling in the context of estate litigation given that in most instances, the capacity assessments that are usually relied on in the course of litigation are of a retrospective nature, since the subject of the assessment is most often deceased.
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My colleague, Sayuri Kagami, blogged Tuesday on efforts to use artificial intelligence in scanning for risk factors that have historically contributed to premature death. Such efforts constitute a significant development in policy pertaining to preventive models of health care.
Broadly speaking, delivery of health care services can generally be categorized into one of two models. The reactive model of health care is one based on acute care, and focuses on the treatment of illness as it arises and on an ongoing basis. Your typical visit to the emergency room would generally fall within the scope of reactive health care.
The preventive model of health care, in contrast, is a proactive treatment model emphasizing, as one might expect, the prevention of illness and the mitigation of key risk factors contributing to chronic disease. This model emerged largely as a result of the significant financial strain placed on public health care models in Ontario and abroad by the reactive model.
Treatment of acute and chronic illness on an ongoing and extended basis is, by most accounts, exceedingly expensive and inefficient. In the context of estate planning, we are frequently exposed to the considerable financial and emotional tolls of treating Alzheimer’s disease and other illnesses impacting cognition.
Since the 1970s, policy makers have made significant strides in advocating for a treatment model that sets out the benefits of preventive health care in an attempt to reduce the burden of reactive treatment models. In particular, this model focuses on steps that may be taken by individuals to reduce the risk of chronic illness in order to alleviate the strain placed on the public health care system.
A recent study performed by Cancer Care Ontario identified four main risk factors common to more than 90% of instances of chronic disease:
- Tobacco consumption;
- Alcohol consumption;
- Lack of physical activity; and
- Unhealthy eating habits.
Proponents of the preventive have therefore advocated for increased funding devoted to mitigating each of these factors in order to reduce reactive spending down the road.
If you didn’t pay attention to your grandmother while growing up, take it from the experts: an ounce of prevention is worth a pound of cure.
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A recent decision of the Ontario Superior Court of Justice considered an interesting question of fact and law. Will challenges in Ontario are ordinarily grounded on the basis that a testator lacked testamentary capacity, did not know and approve of the contents, or that the Will was procured by undue influence. In Cavanagh et al v Sutherland et al, however, the applicant sought to challenge the validity of her mother’s will on novel grounds; namely, that it was procured as a result of a mistake of fact.
The testator died in July 2016, leaving a Will benefiting 5 of her 6 daughters. The Will expressly excluded her sixth daughter, Carolynn, from sharing in the Estate. Carolynn objected to the issuance of a certificate of appointment on the basis that her mother lacked capacity or that the Will was procured by undue influence.
The estate trustees brought a motion for summary judgment seeking an order dismissing Carolynn’s objection and a declaration that the Will was their mother’s valid Last Will and Testament. At the hearing of the motion, Carolynn changed her position and chose instead to focus primarily on her belief that her mother had been operating on a set of mistaken facts.
Carolynn referred to a payment of $65,000 made to her by her parents in or about 2011, prior to the execution of an earlier will that also excluded Carolynn. She took the position that this payment was made in satisfaction of a loan to her father years earlier that her mother knew nothing about. Carolynn argued that her mother likely believed this payment was a gift to Carolynn in lieu of her inheritance and, accordingly, left her no benefit under the Will.
The court found that the evidence held otherwise. Notably, the evidence showed that the payment was not made in satisfaction of a loan, but rather as a result of a demand by Carolynn. In 1996, her parents had agreed to place her on title to a property to assist them in obtaining a mortgage. The mortgage was subsequently paid off in 2011, at which point Carolynn’s parents asked that she transfer her interest in the property back to them.
The evidence showed that Carolynn refused, instead asserting that there was always an intention that she remain on title to the property as legal owner. Carolynn’s parents ultimately offered to buy out her interest in the property in exchange for a payment of $65,000. Her mother later advised the lawyer who prepared the Will that this was to constitute Carolynn’s inheritance. It was clear to the court that the testator had considered this payment when the Will was drafted.
In the end, the evidence was such the court did not have to consider the effect of a true mistake of fact on the validity of a Will. However, the question of a mistake of fact would ordinarily tie into knowledge and approval and, specifically, whether the mistake was sufficient to negate the validity of the Will. In this case, it was apparent that the testator had turned her mind to the payment to Carolynn, and there was no question of a lack of knowledge and approval.
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Medical records are frequently key evidence in estate disputes. Often, a testamentary document or inter vivos transaction is challenged on the basis that the deceased lacked testamentary capacity or the mental capacity to make a valid gift.
The British Columbia Supreme Court recently reviewed the issue of admissibility of medical records within the context of a will challenge. The parties propounding the last will asserted that the deceased’s medical records were inadmissible on the basis that (1) the parties challenging the will were attempting to admit the records for the truth of their contents, (2) the records included third party statements from family members, which was suggested to constitute double hearsay evidence, and (3) the records were entirely inadmissible because they were not relevant, none of them being within weeks of the date of execution of the challenged will.
In Re Singh Estate, 2019 BCSC 272, the estate trustees named in the deceased’s will executed in 2013 only learned of the existence of a subsequent will executed in 2016 after they provided notice to the beneficiaries of the estate that they intended to apply for probate in respect of the 2013 will. The 2016 will disinherited two of the deceased’s eight children (including one of the two adult children named as estate trustee in the 2013 will) on the basis that they had received “their share” in their mother’s estate from the predeceasing husband’s estate. Between the dates of execution of the 2013 and 2016 wills, the deceased had suffered a bad fall and allegedly experienced delusions and had otherwise become forgetful and confused.
At trial, medical records are typically admitted under the business records exemption of the Evidence Act (in Ontario, section 35). Justice MacDonald acknowledged this general treatment of medical evidence, citing the Supreme Court of Canada (at para 48):
While clinical records are hearsay, they are admissible under the business records exception both at common law and under s. 42 of the Evidence Act. The requirements for the admission of medical records as business records are set out in Ares[ v Venner,  SCR 608]. The Supreme Court of Canada held at 626:
Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.
Subsequent case law cited by the Court addressed the second objection of the parties propounding the will, which provided that the observations that a medical practitioner has a duty to record in the ordinary course of business (including those involving third parties) are generally admissible (Cambie Surgeries Corporation v British Columbia (Attorney General), 2016 BCSC 1896). Lastly, the Court considered the issue of relevance of the medical records and found that evidence relating to the mental health before and after the making of a will can be relevant in supporting an inference of capacity at the actual time of execution of the will (Laszlo v Lawton, 2013 BCSC 305).
After finding the medical records to be admissible as evidence of the deceased’s mental capacity (and in consideration of all of the available evidence), the Court declared the 2016 will to be invalid on the basis of lack of testamentary capacity.
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Since the Supreme Court of Canada’s landmark decision in Carter v Canada (Attorney General) and the subsequent decriminalization of medical assistance in dying (“MAID”) in 2016, there has been considerable debate regarding the accessibility of MAID.
Currently, MAID is available only to individuals able to satisfy the following test (set out in the Criminal Code):
- they are eligible — or, but for any applicable minimum period of residence or waiting period, would be eligible — for health services funded by a government in Canada;
- they are at least 18 years of age and capable of making decisions with respect to their health;
- they have a grievous and irremediable medical condition;
- they have made a voluntary request for medical assistance in dying that, in particular, was not made as a result of external pressure; and
- they give informed consent to receive medical assistance in dying after having been informed of the means that are available to relieve their suffering, including palliative care.
The criteria do not feature any mechanism for providing advance consent to MAID. Similarly, an attorney or guardian of personal care cannot consent on behalf of the patient at the time of the procedure, once he or she loses the capacity to consent him or herself.
As it currently stands, an individual who qualifies for MAID must consent at the time of the procedure, before he or she may suffer from diminished mental capacity that compromises the patient’s ability to provide informed consent. In some cases, this has resulted in individuals accessing MAID before they otherwise may have chosen to do so to ensure that they would not be exposed to prolonged suffering during a subsequent period of incapacity, during which MAID would not longer be accessible.
Some individuals and groups, including Dying with Dignity Canada, argue that the laws regarding MAID should be amended to provide for the option of providing advanced requests for MAID.
According to a recent Toronto Star article (“No rush to change assisted-death law”, published on February 17, 2019), Justice Minister David Lametti has stated that MAID laws will not be updated in advance of a five-year parliamentary review in 2021 of how the current MAID regime is operating. At that time, it will no doubt be difficult in considering any changes to balance the rights of those with grievous and irremediable medical conditions to die with dignity on one hand, and the protection of individuals who are vulnerable and whose capable wishes can no longer be confirmed on the other.
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My colleague, Garrett Horrocks, recently blogged on a promising breakthrough in research relating to the early detection of Alzheimer’s disease. The research focused on the use of artificial intelligence to assist in the early detection of the disease.
Last week, I came across an interesting article that discusses a promising breakthrough in the United States in treatment for patients who suffer from Alzheimer’s disease and other degenerative diseases. The fact that treatment options continue to be explored by the science, engineering and medical community is hopeful, in light of last year’s announcement by the world’s largest pharmaceutical company, Pfizer, that it is pulling out of research into Alzheimer’s disease.
The treatment consists of implanting a “pacemaker” into the part of the brain responsible for executive and cognitive functions, such as planning, problem solving and judgment. The article explains that a battery pack is then placed in the chest, which sends electrical currents through the wires in a process called “deep brain stimulation” or DBS.
Studies on the use of the implant have shown that the subject patients’ cognitive and daily functional abilities as a whole declined much more slowly than Alzheimer’s patients in a matched comparison group who were not being treated with DBS.
The article highlights one study participant, Ms. Moore, who, prior to receiving the implant, was unable to cook meals or dress herself without assistance. According to the article, Ms. Moore was very fearful that her disease would take away her ability to play hymns on the piano, however, after two years of receiving DBS, she is still able to continue playing the piano and can now cook meals, select outfits and plan outings independently.
My colleague, Garrett, has pointed out in his recent blog that there could be many ways in which the use of artificial intelligence in the early detection of Alzheimer’s could impact succession and estate planning, such as a predictive diagnosis prompting a testator to take steps to implement an estate plan prior to the loss of capacity.
There is no global definition of capacity, and there are varying degrees of capacity that attract different legal tests. Capacity is decision, time and situation specific, such that a person may have capacity to do certain things, but not others, at different times and under different circumstances.
While the full impact of the use of the implant and DBS in treating Alzheimer’s is not yet clear, should the treatment continue with its successes, it may be possible that people living with Alzheimer’s who do not have testamentary capacity today, may have testamentary capacity sometime in the future.
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Another will challenge was before the Court of Appeal this month on February 5, 2019. Reasons for the panel, comprised of Pepall, Trotter, and Harvison Young JJ.A., were released in writing on February 13th. Quaggiotto v. Quaggiotto, 2019 ONCA 107, can be found here.
The issue of validity was solely focused on a codicil that was executed by Maria Quaggiotto when she was 87 years old. The codicil left the residue of her estate to one son, Livio, while her will had previously left an equal division of the residue to both of her sons, Livio and Franco.
After a 10 day trial, Justice Rogin found that the codicil was valid.
On appeal, the challenger Franco sought to overturn various findings of fact and findings of mixed fact and law.
Ultimately, the panel upheld the decision of Justice Rogin.
The panel reaffirmed the Court of Appeal’s decision in the Orfus Estate with respect to the notion that testators are not required to have “an encyclopedic knowledge” of their assets in order to satisfy the test for testamentary capacity.
Interestingly enough, the Court of Appeal found that the trial judge was sufficiently alive to corroboration requirements of section 13 of the Ontario Evidence Act even though Justice Rogin’s decision would appear to have erroneously cited section 13 of the Ontario Estates Act for this important statutory requirement. The adage “form over substance” did not hold water in this appeal given that the actual legal requirement was adequately considered by Justice Rogin.
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A recent study published by the Department of Radiology and Biomedical Imaging at the University of California at San Francisco represents a promising breakthrough in research relating to early detection of Alzheimer’s disease. At the core of the study, however, is a familiar yet unlikely trend: artificial intelligence.
The research team developed an algorithm to read and interpret PET scan images with a particular emphasis on monitoring and detecting changes in glucose uptake over extended periods of time. Glucose monitoring has historically been an important predictive factor in formulating a diagnosis of Alzheimer’s. Healthy cells generally display high levels of glucose uptake, indicative of robust cell activity. Conversely, lower glucose uptake suggests cell inactivity or death, for example, as a result of Alzheimer’s.
The slow, progressive nature of Alzheimer’s has historically rendered it difficult for radiologists to observe the subtle changes in glucose levels until symptoms had reached a stage at which they were no longer meaningfully reversible. The team at UCSF tailored the algorithm to detect subtle features that were imperceptible to the human eye.
To achieve this, the algorithm was fed thousands of PET scan images from thousands of patients at all stages of cognitive impairment, from no impairment through to late-stage Alzheimer’s. Over time, the algorithm learned to discern between the particular features of a given scan which were of assistance in predicting the eventual onset of Alzheimer’s and those which were not. At the conclusion of the study, the algorithm had correctly predicted the onset of Alzheimer’s in more than 92% of cases. Importantly, the algorithm was able to predict the onset of Alzheimer’s, on average, more than six years before the symptoms constituting a typical diagnosis had manifested.
Leaving aside the obvious benefits relating to treatment and reversibility, early detection of Alzheimer’s could stand to have numerous applications in the context of succession and estate planning. For example, a predictive diagnosis could spur a testator to take steps to implement a proper estate plan well before his or her capacity to do so could become a concern. In turn, the testator would have the security that their plan of succession would be carried out according to his or her instructions, reducing the risk of contentious post-death litigation.
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One of the major facets underpinning the principles of fundamental justice in Canada is ensuring all parties to a litigation have a voice. The ability of the judicial system to satisfy this burden is often rendered more challenging when the capacity of one of the parties is a central issue in a given proceeding. The recent decision of the Ontario Superior Court of Justice in Sylvester v Britton, 2018 ONSC 6620, provides clarity in respect of the duties and obligations of counsel who are appointed to navigate these issues.
In Sylvester, the Applicant brought an application seeking to be appointed as guardian of property and personal care for her mother, Marjorie. Marjorie had previously appointed two of her sons as her attorneys for property and personal care pursuant to validly-executed powers of attorney.
On consent of all parties, the Public Guardian and Trustee arranged to have a lawyer, Clarke Melville, act for Marjorie on the application in accordance with section 3 of Ontario’s Substitute Decisions Act. Section 3 of the SDA provides that, where the capacity of a person is at issue in a proceeding, that person will be deemed to have the capacity to instruct counsel for the purposes of that proceeding. Accordingly, the Court deemed Marjorie to have the capacity to give instructions to Mr. Melville on the application.
The Applicant disputed this presumption of capacity. She brought a motion seeking, amongst other relief, Mr. Melville’s removal as Marjorie’s section 3 counsel and a declaration that Marjorie was not capable of instructing counsel.
The Applicant’s position on the motion was largely premised on earlier findings of Marjorie’s incapacity. Capacity assessments performed several years earlier had revealed that Marjorie was not capable of managing her property or her personal care. At common law, the test for capacity to manage property and personal care is generally more onerous than the test for capacity to instruct counsel. The Applicant took the position that a finding of incapacity to manage property and personal care was sufficient to establish a lack of capacity to instruct counsel.
The Court disagreed and, in its reasons, highlighted several key points that clarify the role of section 3 counsel in the court process. The purpose of the SDA and of section 3 in particular is to protect vulnerable individuals and to allow them to provide input, to the extent possible, on matters that impact their interests.
However, the Court also stressed that the Rules of Professional Conduct govern all solicitor-client relationships, including relations arising under section 3. Section 3 counsel must carry out all of the duties and obligations to the Court and to the client that other counsel must observe, regardless of the particular vulnerabilities of their client. All counsel have an obligation to canvas the wishes or instructions of their client and to advance the client’s interests. The role of section 3 counsel differs only insofar as it is potentially more likely that he or she will be required to advise the Court if, at any point, counsel no longer believes the client has the capacity to give instructions.
This final point is the salient point that governed the Court’s decision to deny the Applicant’s motion. The Court ultimately held that significant deference ought to be granted to section 3 counsel in assessing a client’s capacity to give instructions. The Rules of Professional Conduct properly govern a lawyer’s duty to all clients and to the Court. As such, no individual will be better positioned to judge an incapable person’s capacity to give instructions than the person to whom the instructions would ordinarily be given.
Accordingly, the Court will only interfere if it is apparent that the client is not able to give instructions and where it is clear that counsel has “strayed from his or her obligations to the client and to the Court.” In all other circumstances, the Court will presume that counsel is acting with the integrity of the court process in mind.
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Does an attorney, or guardian, have the power to change a grantor’s estate plan?
According to section 31(1) of the Substitute Decisions Act, a guardian of property (or attorney for property) has the power to do on the incapable person’s behalf anything in respect of property that the person could do if capable, except make a will.
The statute, however, is deceptively simple. Can a guardian transfer property into joint tenancy? Can a guardian sever a joint tenancy? Can a guardian change a beneficiary designation on a RRSP, RRIF or insurance policy? Can an inter vivos trust be established or an estate freeze undertaken to save taxes? There are numerous cases which have tested these issues.
For instance, in Banton v Banton, Justice Cullity found that although the grantor’s attorneys had the authority to create an irrevocable inter vivos trust, they nonetheless breached their fiduciary obligations owing to the grantor, in creating the trust.
The irrevocable trust provided for income and capital at the trustee’s discretion for the grantor’s benefit during his lifetime and a gift over of capital to the grantor’s children, who were also the attorneys. The scheme of distribution of the irrevocable trust was the same as provided for in the grantor’s will. However, the court found that the fact that the remainder interest passed automatically to the grantor’s issue defeated the grantor’s power to revoke his will by marriage and would deprive his common law spouse of potential rights under Parts II and V of the Succession Law Reform Act and Part I of the Family Law Act. The court found that the gift of the remainder of the interest went beyond what was required to protect the grantor’s assets.
Justice Cullity stated:
“I do not share the view that there is an inviolable rule that it is improper for attorneys under a continuing power of attorney to take title to the donor‘s assets either by themselves or jointly with the donor . This must depend upon whether it is reasonable in the circumstances to do so to protect or advance the interest, or otherwise benefit, the donor.”
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