Pursuant to section 79 of the Substitute Decisions Act, the court has discretion to order a capacity assessment of an individual if the person’s capacity is an issue in a proceeding under the SDA. The court must also be satisfied that there are reasonable grounds to believe that the person is incapable.
Where a capacity assessment has already been obtained, the court will be reluctant to order a further capacity assessment of an individual, unless the court has, for example, concerns about the lack of detail or objectivity within the assessment that has already been obtained.
In Forgione v. Forgione, the court was concerned about the adequacy of the assessment carried out by a medical doctor. The court did not know what background information the doctor had or what, if any, influence anyone other than one family member may have had on the process. The report was very brief and consisted largely of conclusions without analysis. There were a number of facts and conflicting versions of facts which, in the court’s view, warranted further examination because they raised questions about the capacity and vulnerability of the incapable. A second assessment was ordered.
Or, listen to the audio version of Will Challenge Litigation – Part 5
This week on Hull on Estate and Succession Planning, Ian and Suzana continue their discussion on the Will Challenge Process, step by step.
They continue to discuss the process of will challenges in closer detail. What makes a good case? They talk about the five different grounds upon which a will can be challenged:
- Lack of testamentary capacity
- Existence of suspicious circumstances
- Will not having been properly executed
- Existence of undue influence
- Possibility of fraud
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Listen to The Question of Compensation and Complaints.
This week on Hull on Estates and Succession Planning, Ian and Suzana discuss the question of compensation and complaints regarding compensation.
Listen to Developments in Will Changes.
This week on Hull on Estates, Ian and Suzana discuss developments in will changes. They reference cases from Key Developments in Estates and Trusts Law in Ontario ed. 2008.
Listen to Dependency and Undue Influence
This week on Hull on Estates, Diane Vieira and Paul Trudelle discuss dependency and undue influence in the case of Bale vs. Bale. This topic is also discussed by Paul Trudelle in his blog post:
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This week on Hull on Estates, Rick and David discuss procedure under the Substitution Decisions Act and review executor and attorney obligations as well as specific procedures permitting someone to compel an accounting.
Over the Christmas break, a news story out of Winnipeg captured national headlines. Samuel Golubchuk is 84 years old and on life support in Winnipeg’s Grace Hospital. He apparently suffered a brain-injury from an earlier fall and part of his brain was removed at the time. Tragically, Mr. Golubchuk cannot walk, speak, eat or breathe on his own. His treating physicians say Mr. Golubchuk has no chance of recovery and that his quality of life is negligible. They want the right to remove him from life support. The news stories don’t indicate whether Mr. Golubchuk left a power of attorney or end-of-life instructions.
Mr. Golubchuk’s family has gone to court to resist any attempt by the hospital’s doctors to remove him from life support. Mr. Golubchuk’s family claims that removing life support would violate Mr. Golubchuk’s orthodox Jewish belief and amount to an assault as it would hasten his death.
In early December, the family was granted a temporary court injunction while a local judge considered the case. In January, the family returned to court and presented two opinions from New York doctors. According to the family’s doctors, Mr. Golubchuk was not beyond hope.
The family has maintained throughout that it is a matter of self-determination and the right to live in a free and democratic society without an outside party making decisions for you. The hospital, on the other hand, maintains that it is up to the treating physician to make a judgment call as to whether or not life support should be removed.
As far as I can tell, the judge hearing the case has still not decided what will happen to Mr. Golubchuk. However, it is clear that the courts struggle with life and death decisions as much as guardians or family members do. There are simply no easy answers. In the end, I think it is difficult to say how any one of us would act or react when confronted with the ultimate decision.
Keep thinking and thanks for reading.
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.
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.