Tag: retrospective 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


21 Oct

Psychological Autopsies and Testamentary Capacity

Suzana Popovic-Montag Capacity, Estate & Trust Tags: , , , , 0 Comments

Assessing whether a testator had testamentary capacity when executing a will can be difficult. When pertinent medical records are available, they can be an excellent resource but more often than not, we need to look beyond the medical evidence in order to obtain an accurate and complete picture of the testator’s state of mind at the relevant time. One method of accomplishing this is to engage a psychiatrist to conduct a psychological autopsy (also referred to as a retrospective capacity assessment).

The psychological autopsy seeks to reconstruct the mental state of the testator at the time the disputed will was executed. This is done by reviewing the medical records as well as examining evidence such as first-hand accounts given by friends, family, neighbours, and the lawyer who drafted the will. In reviewing the information gathered, the psychiatrist is looking for any evidence of symptoms that may have resulted in a lack of testamentary capacity.

In forming an opinion, the psychiatrist must be careful to look specifically at the elements of testamentary capacity as opposed to capacity in general. This will include a focus on whether the testator understood the nature of the act of making a will and its effects, the extent of the property being disposed of, and the claims of persons who would normally expect to benefit. The presumption of competence must also be considered to be the starting point to any evaluation of testamentary capacity.

Additionally, the psychiatrist should be sensitive to some frequent missteps that can arise during this process. This article in the Psychiatric Times lists some of the most common errors as:

1- Equating unusual bequests with incapacity;

2- Failing to obtain an accurate lists of assets;

3- Reliance on a diagnosis or structural brain changes rather than on functional criteria; and

4- Confusing impairments on standardized tests with failure to meet relevant criteria, and automatically equating delusions with lack of testamentary capacity.

The psychological autopsy began as a useful method to assist in determining a person’s cause of death, specifically in cases where suicide was a possibility. Rather than simply looking at the physical elements that contributed to a person’s death, psychiatrists were invited to consider the psycho-social factors as well. In this way, a global picture of the person’s life emerged that helped tell the complete story rather than narrowly looking at a snapshot in time. The practical application of this method has evolved and has since proven to work equally well in the context of assessing testamentary capacity.

Thank you for reading.

Suzana Popovic-Montag


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