Tag: mental illness

26 Jun

Hull on Estates # 549 – Modernizing the Test for Testamentary Capacity

76admin 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

In today’s podcast, Noah Weisberg and Garrett Horrocks discuss whether the Banks v Goodfellow test for testamentary capacity is in need of an update given current trends in medical science and in the increased complexity of asset holdings.

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 Noah Weisberg.

Click here for more information on Garrett Horrocks.

15 May

Hull on Estates #546 – Attorneyship planning options

76admin Archived BLOG POSTS - Hull on Estates, Hull on Estate and Succession Planning, Hull on Estate and Succession Planning, Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes, Show Notes Tags: , , , , , , 0 Comments

This week on Hull on Estates, Natalia Angelini and Nick Esterbauer discuss attorneyship planning options and the importance of full consideration of what may seem like basic options in protecting the interests of clients during periods of mental incapacity.

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 Nick Esterbauer.

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

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09 Dec

Testamentary Capacity and Suicide

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

According to the World Health Organization (“WHO”), someone around the world commits suicide every 40 seconds. The suicide rate for Canadians, as measured by the WHO, is 15 per 100,000 people. Research also shows that although suicide typically arises as a result of the interaction between multiple factors, mental illness, specifically depression, is often present. This is why when a cause of death is suicide and it occurred close in time or in conjunction with the making of a will, there may be some question as to testamentary capacity.

One of the most common concerns is whether the mental illness or depression was severe enough to bring into question the testator’s testamentary capacity. Often, a person suffering from severe depression may feel isolated or rejected from loved ones. This may cause them to be more prone to making certain last minute testamentary dispositions that are not in accordance with family obligations or that deviate sharply from a previous will.

In these situations, the response from the courts has been to continue to apply the test for testamentary capacity as set out in Banks v Goodfellow. As Paul Trudelle points out in his paper, “Suicide, Suicide Notes, and Testamentary Capacity”, while the fact of suicide is admissible as a consideration, it is not conclusive.

Another issue is raised when the deceased leaves behind a suicide note that doubles as their last will and testament. This situation may bring into question issues surrounding formal requirements as well as potential interpretation concerns. The courts have gone back and forth on upholding these notes as valid wills as it is not always clear whether the note is an  expression of the deceased’s testamentary intent or merely precatory.

Thank you for reading.

Suzana Popovic-Montag

02 Feb

Mental Health and Capacity

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

‘Mental disorders’ (also referred to as ‘psychiatric disorders’) encompass everything from personality disorders (including paranoid disorders, obsessive compulsive disorder and schizophrenia), anxiety disorders, psychosis (including hallucinations and delusions) and mood disorders (including depressive disorders and bipolar disorders). Mental health practitioners use the criteria outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) to diagnose mental disorders. Incredibly, the DSM-IV lists two hundred and ninety-seven disorders. According to the 2002 Health Canada Report “A Report on Mental Illnesses in Canada”, one in five Canadians will experience a mental illness in their lifetime. The remaining 80%, of course, will be affected by an illness in a family member, friend or colleague. As reported in “Mental Illness in Canada" (produced by the group Citizens for Mental Health), nearly 1 million Canadians live with a ‘severe and persistent mental illness’. Mental illness is the second leading cause of hospital admissions among those 20-44 years of age and the World Health Organization estimates that by 2020, depression will be the leading cause of disability in developed countries such as ours.

There is no doubt that when one suffers from a mental disorder, there are often questions with regards to their capacity to make decisions on their own behalf, whether those are personal care choices or financial decisions. To further complicate matters, mental health is by no means a static entity. Special challenges are presented, for example, by a mental disorder characterized by ‘episodes’, such as bipolar disorder or schizophrenia. When a loved one attempts to step in to protect their family member, perhaps by attempting to make banking decisions (e.g. freezing a bank account where there is great evidence of poor insight and judgment), there is often a gap between good intentions and strict legal requirements. This is where a Continuing Power of Attorney document could be extraordinarily useful, when applied prudently.

For more information about mental health, please visit the Canadian Mental Health Association at http://www.cmha.ca/bins/index.asp .

Jennifer Hartman, Guest Blogger

 

 

26 Jun

Mental Illness – Crisis?

Hull & Hull LLP Elder Law Tags: , , 0 Comments

There is no question that mental illness for the afflicted and families can be devastating.  The Globe and Mail helps to address the national scale of these illnesses in its recent excellent series entitled “Breakdown: Canada’s Mental Health Crisis”. 

Mixing personal stories, professionals’ views and some of the national consequences of the problem, the series provides a holistic perspective on the problem.

The overwhelming huge reader response speaks for itself.

To be sure, there is not much cheer to be found and much heartache, mitigated only somewhat by some success stories.  The ability of some families to pull together in awful circumstances can also offer inspiration to others.

Remarkable journalism.

Thanks for reading.

Sean Graham

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