Tag: Capacity Litigation

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

14 Sep

Challenging Decisions of the Consent and Capacity Board

Hull & Hull LLP Capacity, Estate & Trust Tags: , , , , , , 0 Comments

The basic principle governing health care treatment of patients is that treatments should not be administered in the absence of the patient’s consent, or where the patient is incapable the patient’s substitute decision-maker: section 10 of Ontario’s Health Care Consent Act ("HCCA").  The onus is on the health practitioner to decide whether the patient is capable and can give consent.  The range of persons within the HCCA’s s. 2(1) definition of "health practitioner" is broad. 

A person who wishes to dispute the finding of incapacity by the health practitioner may apply under section 32(1) of the HCCA to the Consent and Capacity Board (the "Board") for a review of the health practitioner’s finding that a person is incapable with respect to the treatment.  The Board may confirm the health practitioner’s finding or may determine that person is capable.  Section 80 of the HCCA allows a party to appeal Board decisions to the Superior Court.  The court may exercise all the Board’s powers, substitute its opinion for that of the health practitioner’s, or refer the matter back to the Board with directions for rehearing in whole or in part.     

The standard of review for the Board’s decision is correctness with respect to its interpretation of the law, and reasonableness with respect to its application of the law to the facts, since the issue of incapacity is a mixed question of fact and law: Starson v. Swayze, 2003 SCC 32 (CanLII), [2003] 1 S.C.R. 722.  Absent demonstrated unreasonableness, there is no basis for judicial interference with findings of fact or the inferences drawn from the facts.  This means that the Board’s conclusion will be upheld provided it is among the range of conclusions that could reasonably have been reached on the law and evidence. 

Courts tend to carefully review appeals from Board findings of incapacity.  In Starson v. Swayze, the Supreme Court upheld the trial judge’s overturning the Board’s finding of incapacity.  The trial judge examined the extent to which the conclusions drawn by the Board were supported by the evidence from the examination, and concluded they were not reasonably so.  In Re Koch, the Board’s finding of incapacity was overturned.  Again, the court found that the conclusions of the Board were not supported by the evidence from the examination.  Also, the examination itself was insufficiently probing to support the conclusions drawn.  In Hillier v. Milojevic, 2010 ONSC 4514 (CanLII), the court allowed an appeal of the Board’s finding of incapacity where the hearing had not been conducted in an procedurally appropriate manner.  The allegedly incapable person had not been given sufficient time to answer questions, had been questioned rapidly in a manner that disrupted his train of thought, and had to attend the hearing without his glasses and a computer on which he relied for organization.  The court returned the matter to the Board with directions to conduct another hearing with the assistance of an amicus curaie.

Have a great day,

Christopher M.B. Graham – Click here for more information on Chris Graham.





08 Oct

Ordering a Second Capacity Assessment

Hull & Hull LLP Capacity, Estate & Trust, Power of Attorney Tags: , , , , , , , , , , , 0 Comments

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.


19 Feb

Accounting Procedure Available Under the Substitute Decisions Act – Hull on Estates #98

Hull & Hull LLP Capacity, Hull on Estates, Litigation, Passing of Accounts, Podcasts Tags: , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , 0 Comments

Listen to Accounting Procedure Available Under the Substitution Decisions Act.

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.

Comments? Send us an email at hull.lawyers@gmail.com, call us on the comment line at 206-350-6636, or leave us a comment on the Hull on Estates blog.


12 Sep

Look for their Smiling Eyes

Hull & Hull LLP Wills Tags: , , , , , , 0 Comments

The Prince Edward Island court recently entertained an Application for directions by the trustees of the estate of Owen Connolly, reported at Connolly Estate (Re) [2006] P.E.I.J. No. 61.

Mr. Connolly died in 1887. He left a will which established a trust “for the purpose of educating or assisting to educate poor children resident in Prince Edward Island who are members of the Roman Catholic Church and who are either Irish or the sons of Irish farmers…".

The trust was said to have paid out over $1 million in bursaries since inception, and had a reserved capital of approximately $1 million.

The trustees stated that with the passage of time, the question of eligibility had become more difficult. The trustees sought direction from the court as to whether eligibility was open only to males, and whether eligibility was open to those who had “significant” Irish ancestry, being at least 50%.

It was noted that the administration of the trust was not affected by the discrimination provisions of the relevant human rights legislation.

The court had little difficulty in concluding that the trust did not benefit males only.

A more difficult question is what was meant by the term "Irish". The court reviewed the history of Ireland and its society and noted that 19th century Ireland was not the product of a pure strain of "Irish", but was a melding of a variety of ethnic strains of immigrants who arrived at different times through history. The court traced the history of Ireland back to 3000 B.C. The court concluded that when he referred to a person being “Irish”, the testator intended to refer to either a person who had emigrated from Ireland, or to a person who was a descendent of a person who had emigrated from Ireland. By making reference to "sons of Irish fathers", the court concluded that the testator had visualized the Irish blending into the larger community in PEI, and thus, felt that having 50% Irish blood was reasonable and sufficient.

The case is an interesting read, as it not only reviews Irish history, but it sets out in some detail the life of the testator in the mid-1800s, including a detailed report of his death in December, 1887.

Thanks for reading,

Paul Trudelle

11 Sep

Solicitor’s Lien Over Original Will

Hull & Hull LLP Wills Tags: , , , , , , , , 0 Comments

The Ontario Supreme Court of Justice recently ruled on the issue of whether a solicitor can assert a solicitor’s lien over an original will.

In Szabo Estate v. Adelson (2007), CanLII 4588, the solicitor acted as estate solicitor, having been retained by the estate trustee named in the will. He rendered an account for legal services in the amount of $3,230.79. This account was not paid, and the solicitor asserted a solicitor’s lien over the documents in his file, including the original will.

Interestingly, the solicitor offered to release the will if the estate trustee agreed to a charge against the estate. The estate trustee would not agree.

The estate trustee brought an Application under s. 9 of the Estates Act for the production of the original will. In considering the Application, the court noted the basic proposition that where a client discharges a solicitor without cause, the solicitor may exercise a lien for his or her fees over the documents in the solicitor’s possession, and may retain them until paid. 

The estate trustee relied upon an article and an excerpt from a text that stated that a solicitor’s lien did not extend to a will. The court found that the article did not cite any authority for that proposition, and that the case referred to in the text, an 1823 decision, did not support the proposition, either. 

This illustrates that one should not blindly rely on articles and texts as setting out black letter law (unless, of course, one is relying on Hull and Hull, Probate Practice).

The court concluded that a solicitor can exercise a lien over a will, just as he or she could over any other important document.

However, the court can and will intervene in order to prevent an injustice to a client resulting from the exercise of the lien. In the case under consideration, the court ordered the solicitor to deliver up the will IF AND WHEN the estate trustee agreed to a charge against the estate in the amount of the solicitor’s account.

Thanks for reading,

Paul Trudelle

10 Sep

Dogged Estate Troubles

Hull & Hull LLP Wills Tags: , , , , , , , , 1 Comment

Leona Helmsley’s estate continues to raise eyebrows, and serves as an illustration of what not to do when estate planning.

Following her death, it was revealed that she set up a $12m US trust to care for her dog, Trouble.

Last week, it was reported that the named trustee of the trust, her 80 year old brother (who received over $15m US himself from the estate) does not want to care for Trouble. It is yet to be seen whether the alternate trustee, Leona’s grandson, will take on the responsibility.

In addition, Leona’s will directed that Trouble, following his death, be buried with her at the family mausoleum. However, state laws forbid animal remains from being interred at human graveyards.

To make matters worse, it appears that Trouble bit a housekeeper, and the housekeeper now wants a piece of Trouble’s money.

The present circumstances illustrate the need for open discussion of estate plans. Trustees should be consulted in order to ensure that they actually will agree to take on the role of trustee; special requests should be explored to ensure that they are feasible.

Thank you for reading,

Paul Trudelle

27 Jul

Court Orders Parties To Get Along

Hull & Hull LLP Wills Tags: , , , , , , , , , , 0 Comments

Unfortunately, the following quote applies to many of the cases that we deal with on a daily basis:

“To say that brother and sister do not get along in this case is an understatement. There is plenty of mistrust, suspicion and bitterness to go around. The applicant blames her brother for high-handed and unilateral conduct. He claims he has acted improperly. On the other hand, [brother] blames his sister for being non-communicative and hard to get along with. He was compelled to take the steps that he did because his sister which not deal with him.”

The quote is from Hill v. McLoughlin, 2007 CanLII 1334 (Ont. S.C.). There, brother and sister were co-estate trustees and residual beneficiaries of their mother’s estate. As a result of the above-noted mistrust, sister brought an application to have brother removed as an estate trustee.

The court found that while there was friction and hostility between brother and sister which hindered the administration of the estate, it was not satisfied that brother committed a breach of trust as alleged, or was in a conflict of interest.

The court stated that where the deceased has expressly appointed trustees, a court should be loath to interfere with the testator’s expressed intention except on the clearest of evidence that there was no other course to follow. The expressed wishes of the testator should be respected and not interfered with lightly. It is only where a court determines that the welfare of the beneficiaries requires removal and replacement of trustees that the court should undertake such action. It is not any mistake or neglect of duty on the part of the trustees which would lead to their removal. It must be shown that the non-removal of the trustee will likely prevent the trust from being properly executed.

While the court did not order removal of the brother, it did not condone his actions. The court required that the brother undertake certain steps, such as provide specific information to the sister.

On the issue of costs, judge ordered that each party should bear their own costs.

It is often hard for siblings or others to get along and cooperate in the administration of an estate. Further, actions taken by trustees, out of spite or otherwise, can serve to exacerbate the mistrust that already exists. Knowing that the courts will not automatically step in and remove an estate trustee in the circumstances should encourage the parties to an estate to act reasonably and simply get the job done.

Thank you.

Paul Trudelle

26 Jul


Hull & Hull LLP Wills Tags: , , , , , , , , , 0 Comments

The world wide web offers a wealth of information: some useful; some not so. Recently, I came across www.stealanestate.com. The website puffs “Get Rich! On Other People’s Money”, “Displace Rightful Heirs Legally!” and “Never Have to Work Again!”

The web page offers a three step program:

Step One: Assess Opportunities & Establish Yourself
Step Two: Discredit and Displace the Heirs
Step Three: Savour Your Triumph

Tips incude:

• Identify elderly affluent people who are alone;
• Use alcohol;
• Create reasons to see them often;
• Always take their side and fault anyone who disagrees with them;
• Get into a position of trust and authority;
• Act like the perfect son or daughter;
• Keep the rightful heirs ignorant of your relationship;
• Sever all communications between the victim and their heirs;
• Create conflict – lie to the victim about the heirs and their dishonesty and misdeeds.

The site contains many more “tips”.

At first blush, the site is shocking and disturbing. However, deeper into the site there is an explanation. The site claims be operated by individuals “currently in litigation fighting years of undue influence for our mother’s estate”. The tactics and tips set out in the site were apparently used against them. The page is “meant to shock you into action and attention.”

The site should be read as a cautionary tale: a shopping list of things to look out for: both for ourselves and for our loved ones, rather than as a “how-to” list on elder abuse.

Thank you.

Paul Trudelle

25 Jul

Golden Years, or Tin?

Hull & Hull LLP Wills Tags: , , , , , , , , , , 0 Comments

In Thursday’s Globe and Mail, Margaret Wente wrote about “Geezers in Paradise”, and observed that tomorrow’s seniors will be able to enjoy “the most delightful old age of any generation the world has ever known”. Seniors are the fastest growing group in Canada, and by 2017, seniors will outnumber those under 15.

Ms. Wente sees a future where “mature lifestyle residences” replace schools, nannies are imported to care for your mom rather than for your kids, and the most popular diapers will be size XXL. Industries will sprout up to service this aging population, medicines will improve, and the political clout of this older group will ensure their comfort and entitlements.

This optimistic future is contrasted by reports earlier last week that one in three Canadians worry about outliving their savings (Toronto Star, July 16, 2007). The report found that many older Canadians did not foresee such a rosy retirement. 33% of respondents over 60 worked either part-time or full-time, and 19% indicated that their financial situation was worse or much worse than 5 years ago.

The vision of the baby boomer generation, on the cusp of becoming senior citizens, being the most affluent group ever is not universal. “There’s going to be a group of baby boomers for whom all of this image of affluence and consumption isn’t reality,” said professor Doug Owram of the University of British Columbia.

Rich or poor, the articles both highlight the importance of planning for our later years.

Thank you.

Paul Trudelle


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