Tag: capacity

29 May

The tricky business of deathbed estate planning

Ian Hull Beneficiary Designations, Capacity, Elder Law, Estate & Trust, Estate Planning, Executors and Trustees, General Interest, In the News, Trustees, Uncategorized, Wills Tags: , , , , , , , , , , 0 Comments

It’s 8:30 am, you’ve just entered your office, and you get a call from the common-law spouse of one of your long-term clients. It’s bad news – your client is in palliative care and has a will from 2001 that he urgently needs to update. Time is of the essence.

You and your assistant can squeeze in time late in the day to see the client at the hospital. But you know it’s a tricky situation that’s fraught with potential problems. Here are a few steps to consider that could protect you and your client before you head bedside.

  • Make sure you have the expertise they need: On the initial call, be sure to ask specific questions about what the client needs done. If there are trusts or other complex arrangements involved, assess whether you have the expertise to assist. If death is imminent, the last thing your client can waste is time in trying to line up another lawyer. So do your due diligence up front.
  • Assess capacity: Capacity issues could be front and centre for clients who are close to death. If possible, contact an attending doctor, explain the legal test for capacity and ask them to confirm his or her opinion in writing as soon as possible, even on an interim basis by email.

Learn more about capacity issues here: https://estatelawcanada.blogspot.ca/2010/12/when-is-doctors-opinion-on-capacity.html

  • Talk one-to-one: You need, and must insist on, time alone with your client, both to do your own capacity assessment and to minimize any unsubstantiated allegations of undue influence. If the situation is at all suspicious, you have a duty to inquire to satisfy yourself that the client is fully acting on their own accord. This is especially important if the client has had multiple marriages or common-law partners, or has been estranged from family members. If you are not satisfied, you may choose to decline to act.
  • Take notes and/or video: Your notes could potentially be used as evidence in a will challenge or solicitor’s negligence action, so be sure to set out the basis for your opinion on issues such as capacity and undue influence, rather than simply stating a conclusion. Consider having a junior lawyer attend with you, to provide a more complete base of evidence. Videotaping the interview may also be helpful, as it can provide important evidence if the will is ever challenged.

Finally, if you have older clients who have indicated a need to revise their will, be proactive. Send them this link and encourage them to act now to avoid the potential drama and perils of a deathbed will: http://globalnews.ca/news/1105176/the-mortality-of-deathbed-wills/

Thanks for reading,

Ian M. Hull

08 Mar

Lucid Intervals

Suzana Popovic-Montag Capacity, Estate & Trust, Estate Planning, General Interest, Trustees, Uncategorized, Wills Tags: , , , , , , , , 0 Comments

If a person has been found incapable of having the capacity to make a will, the law nonetheless recognizes that such person may experience lucid intervals during which testamentary capacity may be temporarily regained. A will made during a lucid interval may be valid.

The legal test for testamentary capacity is the same regardless of whether the testator suffers from a condition that generally deprives him or her of testamentary capacity. The test was summarized in Re Schwartz, 1970 CarswellOnt 163, as follows:

The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (a) the nature and extent of his property, (b) the persons who are the natural objects of his bounty, and (c) the testamentary provisions he is making; and he must, moreover, be capable of (d) appreciating these factors in relations to each other; and (e) forming an orderly desire as to the disposition of his property.

The critical time during which the testator must have capacity is when instructions are given and when the will is executed. In Re Weidenberger Estate, the Court stated:

What the Deceased’s state of mind was one year before or one year after the date of the document is not overly relevant. The courts have recognized that a Deceased may only have temporary periods of rational and lucid behaviour, and in such moments, an individual may competently dispose of his or her estate.

If a testator generally lacks testamentary capacity, but makes a will during a lucid interval, the evidentiary burden on the propounder is heavier than would otherwise be the case.

We have previously blogged on criticism of the concept of the lucid interval. Some studies suggest that cognitive fluctuations are often short in duration, often seconds or minutes. Such a period of time is unlikely to be sufficient to execute a will. Despite this criticism, the legal concept of the lucid interval remains recognized by the Courts. The concept was recently applied to uphold the validity of a will in Re Zukas Estate, a decision of the Court of Queen’s Bench of Alberta.

Thank you for reading.

Suzana Popovic-Montag

Other articles you might enjoy:

Age and Testamentary Capacity

Dementia and Testamentary Capacity

Capacity While Suffering from Dementia

01 Mar

Insane Delusions

Suzana Popovic-Montag Wills Tags: , , , 0 Comments

Last week we blogged about the relationship between age and capacity, citing the classic statement of the test for testamentary capacity found in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, which includes:

that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.

Since Banks v Goodfellow, the courts have considered the meaning of “insane delusion” in relation to testamentary capacity. In Boughton v Knight (1873), [1861-73] All ER Rep 40, the court held that a “delusion” is something more than a mistaken belief. To reach the status of “delusion” the mistaken belief must be something that no person with sense could believe. In Re Watts Estate, 1933 CarswellNB 9, the Court stated:

It has been laid down that a mistaken belief as to a matter of fact or illogical conclusions therefrom is not necessarily an insane delusion, neither is any belief or prejudice however mistaken which has some basis for it […] So long as there is some evidence of or basis for the belief it is not and never can be an insane delusion.

In Banton v Banton, the court held delusions may not be obvious on their face. In this case, the testator’s belief that his children were only interested in his money was contrary to the evidence. Delusions can include “beliefs whose extreme improbability is apparent only when the surrounding facts are known. These are obviously the more difficult cases.”

To find a disposition void because of delusion, the courts have held it is insufficient simply to show that the delusion is related to the subject matter of the disposition. Instead, the court must be satisfied that the delusions affected the dispositions in the will. If insane delusions on the subject matter of the will are proved to have existed, the propounder has the burden of showing the delusions did not affect the testator’s dispositions.

Thank you for reading.

Suzana Popovic-Montag

 

Other articles you might enjoy:

Psychological Autopsies and Testamentary Capacity

Testamentary Capacity and Schizophrenia

Mental Health and Capacity

 

22 Feb

Age and Testamentary Capacity

Suzana Popovic-Montag Capacity, Wills Tags: , , 0 Comments

“Testamentary capacity” is a term with a particular legal meaning: whether an individual has the necessary cognitive abilities to be capable of making a valid will. The classic statement of the test for testamentary capacity, which remains the most frequently applied version of the test, is found in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects;  shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties;  that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.

Ontario law presumes adults are capable. The Succession Law Reform Act (the “SLRA”) and the Substitute Decisions Act, 1992 (the “SDA”) codify this common law presumption. As a general rule, in Ontario a testator must be 18 years of age before he or she has the legal capacity to make a valid will. Section 8(1) of the SLRA, however, states:

8. (1) A will made by a person who is under the age of eighteen years is not valid unless at the time of making the will the person,

(a) is or has been married;

(b) is contemplating marriage and the will states that it is made in contemplation of marriage to a named person except that such a will is not valid unless and until the marriage to the named person takes place;

(c) is a member of a component of the Canadian Forces,

(i) that is referred to in the National Defence Act (Canada) as a regular force, or

(ii) while placed on active service under the National Defence Act (Canada); or

(d) is a sailor and at sea or in the course of a voyage.

It is a fundamental principle of elder law that a practitioner cannot assume capacity is an issue merely because of age. According to section 2 of the SDA, everyone aged 16 or older is presumed capable of making decisions about his or her personal care and everyone aged 18 or older is presumed capable of making decisions about his or her property. These presumptions do not expire or change for the elderly. A 100 year old is presumed to be capable, just the same as a 20 year old would be.

The most common cases in which testamentary capacity is an issue are where a testator executes a will late in life, while suffering from progressive dementia. The question in these cases is whether the mental capacity of the testator had deteriorated to an extent that deprived him or her of testamentary capacity.

In some cases, a person can be legally incapable of making a will at any time from birth to death. Congenital conditions, conditions that strike early in life, or catastrophic accidents occurring in childhood can deprive an individual of capacity before he or she attains the age of 18. In these cases, the property of these people will pass on intestacy, as guardians for property in Ontario cannot make a will on behalf of the person whose property they manage. Some jurisdictions, such as England and some Australian states and territories, allow for people who lack testamentary capacity to make valid wills. The only Canadian jurisdiction to allow such wills is New Brunswick, pursuant to the Infirm Persons Act.

Thank you for reading.

Suzana Popovic-Montag

 

Other articles you might enjoy:

Lest We Forget: Assessing Testamentary Capacity

Testamentary Capacity and Suicide

Psychological Autopsies and Testamentary Capacity

23 Jan

The Common Law Slayer Rule

Ian Hull Capacity, Estate & Trust, Estate Planning, Ethical Issues, General Interest, Health / Medical, In the News, News & Events, Public Policy Tags: , , , , , , , , 0 Comments

The common law slayer rule makes the law in Canada clear that committing murder will prevent a person from inheriting the estate of the victim. For clarity, the accused must be found guilty and exhaust all of their rights to appeal before the courts will void a testamentary gift or beneficiary designation.

In the cases of Helmuth Buxbaum and Peter Demeter, who were found guilty of murdering their wives, the court refused to allow the men to benefit from their crimes by collecting the proceeds of their wives’ insurance policies. Pursuant to the case of Demeter v British Pacific Life Insurance Co., [1984] OJ No 3363, a criminal conviction will be accepted as proof of criminal activity in civil cases. Therefore, a person who has been convicted of murder cannot argue in civil court proceedings that he or she is innocent and capable of accepting a testamentary gift.

Recently, in Minneapolis, an individual named Michael Gallagher killed his mother, and around a year later, is attempting to obtain her life insurance proceeds. According to an article in the Toronto Star, bedbugs were infesting the apartment of Mr. Gallagher’s mother, and he believed that she would be evicted from her home, and decided to “send her to heaven.” The law in Minnesota is similar to the law in Canada, and their legislation states that an individual who “feloniously and intentionally kills the decedent is not entitled to any benefits under the will.”

This case turns, however, on the fact that Mr. Gallagher was not convicted for murdering his mother. In July, a Judge found that he was not guilty due to reasons of mental illness, stating that he “was unable to understand that his actions were wrong.” This finding allows Mr. Gallagher to potentially have a claim to his mother’s life insurance policy.

In Canada, a  similar finding is known as NCRMD (Not Criminally Responsible on Account of Mental Disorder). If this case took place in Canada, it is likely that Mr. Gallagher would have been found NCRMD. This raises the important question of whether an individual, who is not convicted of murder, but has killed somebody, is still able to claim the proceeds as a beneficiary a testator’s estate or life insurance.

In the case of Nordstrom v. Baumann, [1962] SCR 147, Justice Ritchie stated, “The real issue before the trial judge was whether or not … the appellant was insane to such an extent as to relieve her of the taint of criminality which both counsel agreed would otherwise have precluded her from sharing in her husband’s estate under the rule of public policy.“ The court held that the public policy slayer rule does not apply if the individual was found NCRMD at the time of the killing. Furthermore, in the case of Dreger (Re), [1976] O.J. No. 2125 (H.C.J.), the court held that “[the] rule of public policy [that a person found not guilty for murder] cannot receive property under the will…the only exception to this rule is that a person of unsound mind is not so disqualified from receiving a benefit under the will of a person he has killed while in law insane.“ Lastly, the recent case of Dhingra v. Dhingra Estate, 2012 ONCA 261, upheld a similar finding and allowed the NCRMD individual to apply for the deceased`s life insurance policy.

The law in Ontario seems to uphold the principle that a mentally ill individual who was unable to understand the consequences of their actions should not be automatically disentitled to life insurance proceeds.

Thanks for reading,

Ian M. Hull

Other Articles You Might be Interested In

Red flags when applying for Life Insurance

Life Insurance Fraud and Faking Your Own Death

No-Fault Inheritance

21 Nov

Progressive Dementia and Testamentary Capacity

Ian Hull Capacity, Elder Law, Estate & Trust, Estate Planning, Executors and Trustees, General Interest, Wills Tags: , , , , , , 0 Comments

Testamentary capacity is most commonly an issue when a testator prepares a new will later in life, against a form of progressive dementia, whether it became apparent before or after the creation of the will.

The Main Question to be Considered

In cases regarding progressive dementia, the question is whether the mental deterioration has deprived the testator of his or her testamentary capacity. If the testator has been deprived of their capacity, it is likely (but by no means certain) that the will they signed will be invalid. Pursuant to the case of Johnson v Huchkewich (2010 ONSC 6002), a diagnosis of dementia is not tantamount to a lack of testamentary capacity.

Elderly man considers testamentary capacity
“In cases regarding progressive dementia, the question is whether the mental deterioration has deprived the testator of his or her testamentary capacity.”

Requirements for Capacity

As established in Banks v Goodfellow [(1870), [1861-73] All ER Rep 47], “the standard of capacity in cases of impaired mental power, is…the capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding.” In applying the test for testamentary capacity, it is important to ensure that the testator was capable of appreciating the terms of the will, but also the circumstances surrounding the making of the will. The testator must be able to recall and comprehend circumstances beyond a range of familiar topics. As defined in Leger v Poirier (1944 CarswellNB 11), the individual must be able to have a “disposing mind and memory”, which is able to “comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like.”

Therefore, in a case where an individual has progressive dementia and is attempting to make a testamentary document, the lawyer has an obligation to ascertain if the individual can appreciate the circumstances as a whole. The ability for the testator to rationally respond to questions is not enough to determine that the individual has full capacity.

Furthermore, it bears repeating that a testator who is incapable to manage his or her affairs due to progressive dementia, does not necessarily lack testamentary capacity. As established in the case of Cranford’s Will, Re, (1978 CarswellNfld 23), “in determining the testamentary capacity of an aged person it is necessary to be careful not to substitute suspicion for proof so as to render it impossible for old people to make wills…”

Thanks for reading,

Ian M. Hull

Other Articles You Might Enjoy

Capacity While Suffering From Dementia

Top Estate, Trust and Capacity Cases of 2015: A Year in Review

Psychological Autopsies and Testamentary Capacity

27 Sep

Hull on Estates #486 – Developments in Testamentary Capacity

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates, Capacity, Hull on Estate and Succession Planning, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , 0 Comments

This week on Hull on Estates, Ian Hull and Noah Weisberg discuss the development of testamentary capacity and steps a drafting solicitor should take in this regard.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Ian M. Hull.

Click here for more information on Noah Weisberg.

23 Sep

World Alzheimer’s Month: 5 Common Misconceptions About Dementia

Nick Esterbauer Capacity, In the News Tags: , , , , 0 Comments
World Alzheimer's Month
“Research suggests that there are ways to limit the risks of developing dementia, such as an active and social lifestyle and a healthy diet.”

This September marks the fifth annual World Alzheimer’s Month.  World Alzheimer’s Month and World Alzheimer’s Day, which took place on Wednesday, are part of a campaign to increase awareness of dementia and related misconceptions.

In honour of World Alzheimer’s Day, Global News posted an article outlining five common misconceptions about dementia.  They focused on the following:

  • “Misconception: A diagnosis of Alzheimer’s disease or dementia means my life is over.”  Individuals can continue to live and function normally for years despite a diagnosis with Alzheimer’s disease.
  • “Misconception: Dementia is a disease of the elderly.”  Although the likelihood of developing dementia and other memory issues may increase with age, early-onset dementia can affect individuals in their 40s or 50s.  In Canada, approximately 16 thousand of those living with dementia are under the age of 65.
  • “Misconception: There’s nothing I can do to prevent or stave off dementia.”  Research suggests that there are ways to limit the risks of developing dementia, such as an active and social lifestyle and a healthy diet.
  • “Misconception: Dementia and Alzheimer’s disease are all about memory loss.”  Dementia goes deeper than memory loss and this misconception may trivialize the disease.
  • “Misconception: One of my parents had Alzheimer’s disease, so I’m going to get it, too.”  The most common forms of dementia do not appear to be genetically inherited, so the risk of developing Alzheimer’s is only loosely connected to family history of the disease.

Approximately 564 thousand Canadians live with Alzheimer’s disease.  It is anticipated that by 2031, this number will increase to approximately 937 thousand.

Have a great weekend.

Nick Esterbauer

20 Sep

Hull on Estates #485 – Capacity to Instruct Counsel

Hull & Hull LLP Archived BLOG POSTS - Hull on Estates, Capacity, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Doreen So discuss the issues surrounding a client’s capacity to instruct counsel.

Should you have any questions, please email us at webmaster@hullandhull.com or leave a comment on our blog.

Click here for more information on Natalia Angelini.

Click here for more information on Doreen So.

10 Aug

When Can A Will Be Signed By Someone Other Than The Testator?

Suzana Popovic-Montag Capacity, Health / Medical, Wills Tags: , , , , , 0 Comments

We have written before on the formal requirements of a will in Ontario, under the Succession Law Reform Act. One requirement is that a will is signed “by the testator or by some other person in his or her presence and by his or her direction” (s4(1)(a)). This section indicates that a will may be signed by an agent, or a signature by amanuensis. It also raises the important question: in what  circumstances would it be appropriate to have a third party sign a will on behalf
of the testator?

blog-photo-seg-funds-300x199

Signing a will via amanuensis is most appropriate where the testator lacks physical capacity to sign on his or her
own behalf. This is not to be confused with mental capacity:
a testator must always have the capacity to consider the extent and nature of his or her property and to consider the claims of potential beneficiaries. Moreover, the testator must be able to see and be mentally aware of his or her amanuensis (see: Peden v. Abraham, [1912] 3 WWR 265).

A person who does not have the physical capacity to write his or her name may also be unable to hold or read their will. In that case, the will must be read aloud so the testator can have knowledge of its contents and approve them. In the case of a very feeble person, it may be a good idea to keep the will as short as possible, so the testator can remain alert while it is read in its entirety.

If the testator is mentally capable but feeble, in pain, or otherwise unable to sign the document, an amanuensis may be used. In Clark, In the Goods of (1839), 2 Curt 329, the testator was too ill to hold a pen, so the will was signed on his behalf by the parish vicar and the will was held to be valid. A will signed by amanuensis was also allowed in a case where the testator did not know how to write (Re Deeley & Green, [1930] 1 DLR 603). In the case of a testator with low literacy, the testator may also make a mark of some kind, such as the classic X.

Thank you for reading.

Suzana Popovic-Montag

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