Category: Capacity

14 Nov

Getting Off the Record – Hull on Estates #85

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Listen to Getting Off the Record

This week on Hull on Estates, Sean Graham and Natalia Angelini dicuss the unfortunate circumstances that usually accompany the process of getting off the record.



28 Aug

Spousal Exclusion Issues – Hull on Estates Podcast #74

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Listen to "Spousal Exclusion Issues"
Read the transcribed version of "Spousal Exclusion Issues"

In this week’s episode of Hull on Estates, David Smith and Diane A. Vieira discuss the issues surrounding spousal exclusion from the will of the deceased and how to challenge this exclusion.

Click "Continue Reading" to read the transcribed version of this podcast.


16 Jul

Getting the Right Evidence

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Over the next week, I will blog on a variety of topics within the estate and and trust world. I will canvas notable case law as well as draw on my recent experience. My first topic deals with evidence.

It is crucial when litigating to amass the right evidence. A great deal of thought usually goes into deciding whether to litigate, but once that decision has been made, the right evidence has to be put forward in order to win or to facilitate a favourable settlement. Much of what litigators now do is by way of application so affidavit evidence is key. The beauty of affidavit evidence is that it allows the lawyer time to draft or finesse the evidence – not change it, but just present it in its most persuasive format.

When dealing with a will challenge and capacity, the notes of the solicitor who drew up the will are obviously critical, as is any medical evidence particularly from a family doctor. In a guardianship fight, medical evidence is again key, but so is evidence from family or friends. However, when deciding what evidence to submit, a careful litigator will take the time to decide what evidence is required over and above the usual. In other words, what avenues are worth exploring that may reveal the unexpected. Is there some person who may be able to add fresh evidence that will make the difference and carry the day?

In a recent guardianship case that I was involved with, the evidence of two neighbours turned out to be critical. The neighbours were able to comment on the slow deterioration of the incapable. As family members had applied to the court to be appointed guardians, the neighbour were also able to comment on whether the family members visited and how often. The neighbours, who still kept in touch with the incapable, were also able speak to the wishes of the incapable when it came to who should look after the incapable. A caregiver at a nursing home was also in a position to comment on the mental state of the incapable and, in fact, assisted a doctor who was retained to prepare a retrospective assessment. What the neighbours and the caregiver brought to the table was the fact that their evidence was credible and independent. In other words, they had no particular stake, one way or the other, in the outcome of the litigation. They were simply interested in doing what was best for the incapable. When it comes to evidence from outside or third parties, their evidence will likely be believed because it is seen as untainted. As a result, every effort should be made to get evidence from outside or third parties and from sources that may be out of the ordinary.

Thanks for reading.


27 Mar

Hull on Estates Podcast #52 – Trying to Protect an Elderly Parent from Financial Exploitation; The Limits on Power of Attorney

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Listen to “Trying to Protect an Elderly Parent from Financial Exploitation; The Limits on Power of Attorney”

Read the transcribed version of “Trying to Protect an Elderly Parent from Financial Exploitation; The Limits on Power of Attorney”

During Hull on Estates Episode #52, Justin de Vries and Megan Connolly discuss the central question in the case of a father and his children, McMullen v. McMullen: did the defendants improperly use their power of attorney when they transferred legal title to Mr. McMullen’s condominium from his sole ownership to their joint ownership?

Justin and Megan summarize the case and cover issues such as capacity, breach of fiduciary duty and elder abuse.

16 Jan

An End to Alzheimer’s

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January 15, 2007 articles from the National Post and the Globe and Mail describe breakthroughs in Alzheimer’s research.

This encouraging news raises the possibility that we may be closer to a cure for this terrible disease, or at least treatments to slow the onset. Families struggling daily against the ravages of dementia can now see some light at the end of a very long tunnel.

Capacity law could be greatly affected as well. Current assessments to determine capacity, such as the capacity to manage property or the capacity to execute a Will, mix elements of science (such as cat scans) with the experience and judgment of the capacity assessor. Different assessors come to different conclusions in close cases.

As science can better identify and isolate genetic causes of dementia, we can expect more accurate tests. We might even see partial or comprehensive cures for dementia diseases. If so, patients who have lost capacity might recover it. Someone unable to sign a binding Will in 2006 could theoretically regain that ability in 2008.

This opens a Pandora’s box of fascinating questions. For example, if John Doe loses capacity in 2005 and regains it in 2010, who’s to say if he would name the same beneficiaries in 2011 as in 2004? Conceivably his personality may be significantly different after recovering capacity than it was before he lost it.

A beneficiary’s joy at recovering a loved one could be tempered by losing an inheritance.

Thanks for reading.

Sean Graham

06 Nov

Undue Influence and Testamentary Capacity

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The recent decision of the Ontario Superior Court of Justice in the matter of Hutchison v. Hutchison [2006] O.J. No. 3231 (W.A. Jenkins J.) provides an illustration of the court considering the concepts of undue influence and testamentary capacity.

The plaintiffs in this case were three of the four children of the deceased. The defendants were the youngest child, and the child’s wife.

The evidence as considered by the court seriously called into question the capacity of the deceased. By 1996, the deceased was showing early signs of dementia. In 1998, he was found in his car, parked on a railway track. He was disoriented, and was taken to hospital. He was diagnosed as suffering from dementia. While in the hospital, he wandered away, and had to be returned by the police.

Following his diagnosis, he was released from the hospital and lived with the defendants at his home until his death in February, 2002 at the age of 86.

Shortly after his assessment in 1998, the deceased transferred his home to his youngest son. He also transferred his investment account. He then made a new Will wherein he bequeathed the whole of his estate to his youngest son. (In a prior Will, executed in 1992, he divided his estate equally amongst his four children.)



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