Tag: capacity assessment

16 Jul

Retrospective Capacity Assessments: Yay or Nay?

Kira Domratchev Capacity, Estate & Trust, Estate Litigation Tags: , , , , , , , , , , , , 0 Comments

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.

Thanks for reading!

Kira Domratchev

Find this blog interesting? Please consider these other related posts:

Expert “Hot-tubbing” and Its Use in Will Challenges

Psychological Autopsies and Testamentary Capacity

The Search for Contemporary Values: A Moving Target

 

28 Sep

Temporary Guardians of Property

Paul Emile Trudelle Estate Planning, Guardianship, Power of Attorney Tags: , , 0 Comments

The court has the authority under the Substitute Decisions Act to appoint a guardian for property. However, does the court have the authority to appoint a temporary guardian for property? According to the decision in Ballinger v. Marshall, 2018 ONSC 3020, the answer is Yes.

In Ballinger, Ms. Marshall’s son applied for a declaration that Ms. Marshall was incapable of managing property and personal care, and for an order appointing himself as her guardian for property and personal care.Capacity Assessment

In an interim order, the court ordered that Ms. Marshall be assessed. The court also ordered that counsel be appointed by the Public Guardian and Trustee to represent Ms. Marshall (“s. 3 counsel”).

Ms. Marshall refused to be assessed. A further motion was brought to compel Ms. Marshall to be assessed, which order was granted. Still, Ms. Marshall still refused to be assessed.

The court considered s. 25 of the Substitute Decisions Act, which sets out what may be contained in an order appointing a guardian. Section 25 provides that an order appointing a guardian for a person must include a finding that the person is incapable of managing property. Further, the court may make the appointment for a limited period as the court considers appropriate, and impose such conditions as the court considers appropriate.

The court held that this gives the court jurisdiction to make a temporary order. Support for this was found in the Divisional Court decision of Bennett v. Gotlibowicz, 2009 CanLII 33031 (ON SCDC).

In Bennett, a court-ordered assessment concluded that the person was incapable. In Marshall, there was no such assessment evidence: due to Ms. Marshall’s refusal to undergo an assessment. The court was, however, able to rely on the son’s observations with respect to his mother’s behavior to come to a conclusion that, on a balance of probabilities, Ms. Marshall did not have capacity to manage her property.

The son was appointed as guardian. However, the guardianship was only a temporary one, until:

  • Ms. Marshall participates in a capacity assessment and the capacity assessment is returned to the court for consideration;
  • the matter is returned to the court for further directions; or
  • November 15, 2018.

The court also gave specific direction with respect to what the guardian could do with Ms. Marshall’ property. He was to sell her house, and pay her debts. The proceeds of the sale, after the payment of debts, was to be held in a law firm’s trust account pending the further order of the court. The son had proposed that an affordable condominium be purchased for Ms. Marshal as alternative accommodation. However, the court did not allow for this, stating that “I believe that it is best that this process proceed slowly”.

Have a great weekend.

Paul Trudelle

28 Jun

Contextualizing Capacity: The ‘Who’, ‘What’ and ‘When’ of Decision-Making

Garrett Horrocks Capacity, Estate Planning, Guardianship Tags: , , , , 0 Comments

Capacity is a fundamental consideration in many aspects of estate, trust, and attorneyship litigation.  The capacity of an individual to take a particular legal step, for example, to effect a distribution of property or to make a valid testamentary document, will often form the basis of a claim or court application.  However, as set out in today’s blog, capacity is specific as to task, time, and situation.  Context is a key factor in assessing capacity or lack thereof.

Capacity is specific as to task, time, and situation.

Whether an individual will be found to be capable of taking a particular legal step depends on the nature of the step being taken and when this step was taken.  By way of example, the threshold for the capacity required by a testator to execute a valid Last Will and Testament differs from, and is considerably higher than, the threshold of an individual seeking to grant a power of attorney for property or personal care.

The capacity to make a valid will requires an individual to have a clear understanding of the nature and extent of their assets, and to understand the effects of the dispositions being made including any claims that might arise as a result.  The capacity to grant a power of attorney for property, while similar to testamentary capacity, is a lower threshold.  An individual will be capable of granting a power of attorney for property provided that,

  1. they have a general understanding of the nature and value of their property;
  2. are aware of the obligations owed to any of their dependants; and
  3. understand the nature of the rights being given to the attorney as well as the rights that they retain as the grantor of the power of attorney, for example, the right to revoke the power of attorney if capable.

While the capacity to grant a power of attorney for property only requires the grantor to have a general understanding of their property or their obligations, testamentary capacity requires specific knowledge and appreciation of potential legal ramifications.  Accordingly, an assessment of an individual’s capacity in each respect will impart different requirements.

Capacity is also specific as to time, particularly as an individual’s capacity may fluctuate depending on illness or circumstance.  While somewhat uncommon in practice, an individual who was previously assessed as incapable may subsequently regain the capacity to take a particular legal step.  Accordingly, when acting on behalf of an individual challenging the validity of a testamentary document or disposition of property, it is important to consider not only the grantor’s historical capacity or lack thereof, but also whether capacity may have been regained at some point prior to the disposition being challenged.

Thanks for reading.

Garrett Horrocks

14 Jun

The Eastman Estate: The Original Kodak Moment

Garrett Horrocks Capacity, Estate & Trust, Estate Planning, General Interest, In the News, Litigation, Public Policy, Wills Tags: , , , 0 Comments

On a recent trip to Rochester, New York, my fiancée and I had the pleasure of touring the George Eastman Museum and came across an interesting piece of estates lore.

George Eastman, the founder of Kodak and a pioneer of bringing photography to the mainstream, died leaving a Will drawn in 1925.  As his wife had predeceased him and they had no children, Mr. Eastman devised all of his real property and left a substantial cash legacy to his closest family member, his niece, Ellen Dryden.  Mr. Eastman’s estate held significant assets, and the value of liquid assets alone was estimated as exceeding the equivalent of USD$35 million today.

However, on March 9, 1932, only five days before his death, Mr. Eastman had a change of heart with respect to the distribution of his estate.  Rather than leave the bulk of his estate to an individual, Mr. Eastman wished to ensure that his legacy would be one of service to the community that had fostered his photography empire.  True to form as a philanthropist and benefactor of local enterprise, Mr. Eastman executed a Codicil to his Will, changing the primary beneficiary of his estate from his niece to the University of Rochester.

The testamentary dispositions under the Codicil represented a significant deviation from those under his Will.  Typically, where a testator’s dispositions vary substantially from one instrument to another, concerns may arise with respect to the their testamentary capacity or the presence of undue influence.

A shrewd entrepreneur in his own right, Mr. Eastman recognized the risk that the Codicil might later be the subject of scrutiny or litigation.  On the date the Codicil was to be executed, Mr. Eastman hosted a gathering at his residence and invited many guests and acquaintances.  He devoted time to speaking to each individual guest about topical, personal subjects so that they could attest to Mr. Eastman’s soundness of mind in the event that a certain disgruntled niece chose to commence a Will challenge.

In a way, Mr. Eastman’s goal is not too dissimilar from some of the criteria that are relied on even today to assess a testator’s capacity.  Third-party evidence that a testator appeared to be of sound mind immediately prior to the execution of a testamentary document may help a trier of fact draw a favourable conclusion with respect to capacity.  While the formal criteria to assess capacity primarily consider a testator’s appreciation and understanding of his or her assets, Mr. Eastman’s clever scheme demonstrates that he turned his mind to questions about his own capacity and took steps to mitigate the risks.

Mr. Eastman’s Codicil was not later subject to any litigation, and the University of Rochester received a handsome distribution out of his estate.

Thanks for reading.

Garrett Horrocks

28 Aug

Will Drafting and Testamentary Capacity

Noah Weisberg Capacity, Estate Planning Tags: , , , , , , , , 1 Comment

Many estate solicitors are retained to draft Wills for elderly clients.  Concerns over capacity are normal.  As such, I am frequently asked how thoroughly a drafting solicitor should enquire into capacity.

Although there is no universal answer, the decision in Wiseman v Perrey, provides helpful insight.  Referring to an earlier decision from the Manitoba Court of Queen’s Bench, the Court set out the basic rules dealing with testamentary capacity where a professional, such as a drafting solicitor, is involved:

(a) neither the superficial appearance of lucidity nor the ability to answer simple questions in an apparently rational way are sufficient evidence of capacity;

(b) the duty upon a solicitor taking instructions for a will is always a heavy one.  When the client is weak and ill and, particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous; and

(c) a solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers and then simply recording in legal form the words expressed by the client.  He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.

There are a variety of tools a solicitor should employ, including having the testator take a Mini-Mental State Examination.

Depending on the severity of the solicitor’s concern, the use of a capacity assessor who specializes in assessing testamentary capacity should be considered.  The assessor should be specifically instructed to assess whether a testator has the capacity to make a new Will.  Although not an easy topic to broach with a client, these types of assessments can assist in ensuring the testator’s last ‘capable’ wishes are followed.

Noah Weisberg

Find this topic interesting? Other related blogs include:

20 Oct

Huang v. Braga: Appointment of Litigation Guardian for a Self-Represented Litigant

Laura Betts Capacity, General Interest, Guardianship, Litigation, Power of Attorney Tags: , , , , 0 Comments

Pursuant to Rule 7.01(1) of the Ontario Rules of Civil Procedure (the “Rules”) a Litigation Guardian is required to commence, continue or defend proceedings which involve a person under a disability.

“Disability” is defined in Rule 1.03(1) to mean a person who is (a) a minor, (b) mentally incapable within the meaning of section 6 or section 45 of the Substitute Decisions Act, 1992, whether that person has a guardian or not, or (c) an Absentee within the meaning of the Absentee Act.

The procedure and requirements for the appointment of a Litigation Guardian are different for  plaintiffs/applicants and defendants/respondents.

The initial appointment of a Litigation Guardian for a plaintiff or applicant occurs without a court order upon the filing of an affidavit with the court setting out the information outlined in Rule 7.02(2).

Where the party under a disability is a defendant or respondent to a proceeding, Rule 7.03(1) states that a Litigation Guardian must be appointed by motion to the court unless the exceptions set out in Rule 7.03 (2), (2.1) or (3) apply. These exceptions include the prior appointment of a Guardian or a valid Attorney for Property with express powers to act as Litigation Guardian, or where the Office of the Children’s Lawyer is representing a minor’s interest in an estate or trust. Where there is no appointed guardian or attorney under a power of attorney, any person not under a disability may act as a Litigation Guardian. Where there is no person willing to act as Litigation Guardian, the Public Guardian and Trustee may be appointed.

Procedure and requirements for the appointment of a Litigation Guardian.
“The procedure and requirements for the appointment of a Litigation Guardian are different for plaintiffs/applicants and defendants/respondents.”

Litigation Guardians are necessary to protect parties under disability, but also to protect opposing parties and court procedures.

A recent decision of the Ontario Superior Court of Justice, Huang v. Braga, 2016 ONSC 6306, considers the appointment of a litigation guardian for a defendant or respondent in circumstances of mental incapacity.

In that case, the defendant had retained five different counsel over 13 years. She had fired her  counsel, rejected a large settlement and insisted on proceeding to trial. A capacity assessment was ordered and she was found to be incapable of acting for herself in the action, but capable of managing her property. On review of the totality of the circumstances, Archibald J. found the defendant to be a party under a disability and issued  Judgment appointing the Public Guardian and Trustee to act as litigation guardian.

Archibald J. refers to the decision in C.C. v. Children’s Aids Society of Toronto, [2007] OJ No. 5613, which establishes the following test for whether a Litigation Guardian is required:

  • The person must appear to be mentally incapable with respect to an issue in the case; and
  • As a result of being mentally incapable, the person requires legal representation to be appointed by the Court.

In addition, Archibald J. states that the cause of incapacity must stem from a source of mental incapacity such as mental illness, dementia, developmental delay or physical injury and not from some other reason such as lack of sophistication, education or cultural differences.

Archibald J. states that in determining whether a person “appears to be mentally incapable” the following factors should be considered:

(a) The person’s ability to know or understand the minimum choices or decisions required and to make them;

(b) An appreciation of the consequences and effects of his or her choices or decisions;

(c) An appreciation of the nature of the proceedings;

(d) The person’s inability to choose and keep counsel;

(e) The person’s inability to represent him or herself;

(f) The person’s inability to distinguish between relevant and irrelevant issues; and,

(g) The person’s mistaken beliefs regarding the law or court procedures.

Traditionally the Court has accepted the following types of evidence in support of same:

  • medical or psychological evidence as to capacity (including, a capacity assessment, report or doctors certificate);
  • evidence from persons who know the litigant well;
  • appearance and demeanour of the litigant;
  • testimony of the litigant; and,
  • opinion of the litigant’s own counsel.

Thank you for reading.
Laura Betts

27 Sep

Hull on Estates #486 – Developments in Testamentary Capacity

Hull & Hull LLP 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.

20 Sep

Hull on Estates #485 – Capacity to Instruct Counsel

Hull & Hull LLP 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.

03 May

Hull on Estates #465 – Contemporaneous Capacity Assessments

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

This week on Hull on Estates, Paul Trudelle and Stuart Clark discuss contemporaneous capacity assessments. For a link to the paper by Dr. Kenneth Shulman discussed in the podcast, please click here http://bit.ly/1TgJCnl.

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 Paul Trudelle.

Click here for more information on Stuart Clark.

07 Mar

Expert “Hot-tubbing” and Its Use in Will Challenges

Ian Hull Capacity, Litigation Tags: , , , , , , , , , 0 Comments

When a will is challenged on the basis of testamentary capacity, one of the first considerations is whether the testator underwent a capacity assessment during their lifetime. Unfortunately, when it turns out that their capacity was never formally assessed, this presents a challenge for both sides of the proceeding. In this situation, a retrospective capacity assessment may be done by a medical professional. A retrospective capacity assessment usually involves a review of the testator’s medical records, any relevant lawyers’ files, and any other relevant material. The retrospective capacity assessor will conduct their assessment in the context of the legal test for capacity.

blog photoIn will challenge cases, the medical records are often crucial. As these records may be some of the only evidence available that speaks to the testator’s condition and state of mind, it is vital that judges are able to understand the technical points and the effect of the evidence that is found in the records. However, most judges do not have the specialized medical knowledge required to come to a fulsome understanding of the evidence and come to the proper conclusions. Particularly given the frequently voluminous amount of medical records that may be produced by hospitals and health-care institutions for a particular patient, it can be difficult to wade through and identify the key elements. As such, the use of experts who do, in fact, possess specialized medical knowledge is important in order to assist judges.

However, even the presentation of technical medical evidence by a medical professional can be complicated and time-consuming. One method of presenting expert evidence, referred to as “hot tubbing”, originated in Australia and involves a process whereby all experts in a proceeding present their evidence concurrently, as a panel. Some of the benefits linked to this type of presentation include shortening the length of expert evidence in order to make a more efficient use of the court’s time, and assisting the judge in understanding the complexity and volume of the evidence.

This type of presentation of expert evidence may be useful in the case of a will challenge, where there is disagreement between opposing parties’ experts, and voluminous medical evidence that must be presented. “Hot tubbing” allows the experts to be questioned together. As such, it can help emphasize the key issues, the areas where the experts disagree, and the areas where they agree. By identifying areas of agreement, this can help reduce the time spent on those areas, and free up more time to focus on contentious matters. “Hot tubbing” can also identify where the experts may have made different assumptions and how this has affected their conclusion, and can also allow for a more debate-like discussion, where experts can challenge the other’s evidence and provide further evidence to support their own, opposing position.

The practice of “hot tubbing” is not frequently used in Canada. It can also have its downsides if one expert tends to dominate the other in presenting their evidence, or if the experts do not respond well to the more collaborative approach. As with any presentation of evidence, it can be difficult to predict exactly how it will come out at the time of trial. It takes planning and preparation to ensure that evidence is presented as efficiently and clearly as possible.

Thanks for reading.

Ian Hull

SUBSCRIBE TO OUR BLOG

Enter your email address to subscribe to this blog and receive notifications of new posts by email.
 

CONNECT WITH US

CATEGORIES

ARCHIVES

TWITTER WIDGET