Tag: Testamentary Capacity

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

 

04 Sep

Hull on Estates #554 – Golden Rule for Assessing Testamentary Capacity

76admin 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, Noah Weisberg and Doreen So discuss the UK and Hong Kong Golden Rule for assessing testamentary capacity.

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 Doreen So.

06 Jul

Testamentary Capacity: Considering Contextual Factors

Rebecca Rauws Capacity, Wills Tags: , , , , , , , , , , 0 Comments

A recent decision from the Court of Appeal for Ontario, ­­­­Dujardin v Dujardin, 2018 ONCA 597, considers an appeal with respect to a Will challenge on the basis that the testator lacked testamentary capacity. The testator in this situation was a frequent consumer of alcohol. Despite what the trial judge called the testator’s “chronic alcoholism”, it seemed as though he was able to function normally on a day-to-day basis, including in business dealings relating to a family farm owned by the testator and his brother. Following the testator’s death, his wife disputed his Will, under which she received no benefit.

Recently, my colleagues, Noah Weisberg and Garrett Horrocks, discussed whether the classic test for testamentary capacity as set out in Banks v Goodfellow should be updated, and a new test as proposed in an article in the Canadian Bar Review, Vol 95 No. 1 (2017), Banks v Goodfellow (1870): Time to Update the Test for Testamentary Capacity.

The article opines that the context of the testator, including, for instance, family dynamics, should be incorporated explicitly into the test for testamentary capacity. This means that we would be asking the question: “can this particular person, with his or her particular mental abilities, in this particular situation, make this particular Will, at this particular time?”, rather than “can this testator make a Will?”

I thought the suggestions in the article were interesting when considering the facts of the Dujardin decision, and the findings of the trial judge. It seems as though the lower court took into account a number of contextual factors in applying the Banks v Goodfellow test, ultimately leading to a conclusion that the testator did possess the requisite testamentary capacity, a conclusion which was upheld by the Court of Appeal.

In particular, some of the interesting contextual factors included:

  • the history of the testator and his brother’s ownership and operation of the family farm, and the brothers’ consistent desires to leave their respective shares of the farm to each other upon their death;
  • prior mirror Wills executed by the brothers 13 years before the testator’s death, which reflected the same intention as the later Will that was being challenged (the testator’s prior will was revoked in 2000 when he married his wife); and
  • the testator’s relationship dynamic with his wife, with whom it appeared he was not close, and the provision that he made for her outside of his Will.

In particular, the Court of Appeal commented that “[g]enerally, the manner in which [the testator] disposed of his property made sense in the context of his life and familial relationships.”

Had the trial judge not considered the various contextual factors, it’s possible she could have arrived at a different conclusion. Subject to the medical evidence, given that the testator suffered from alcoholism, it may have been open to the court to conclude that this condition had, in fact, affected the testator’s cognition.

In any event, it is interesting to see a practical example of the ideas put forth in the article mentioned above, and to consider how the suggestions of the authors may come into play in real-world situations.

Thanks for reading,

Rebecca Rauws

 

You may enjoy these other blog posts:

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.

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

11 Jun

Can a Death Note Ever be Considered a Will?

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

The general rule, one that most people are probably familiar with when they think of a Will, is that the testator has to have the requisite capacity in order to be able to execute it. But what does that mean?

Generally, it means that a person should be of sound mind and understanding and have sufficient capacity to appreciate the various dispositions of property that would be put into effect with his or her execution of the Will. In other words, the testator must:

(1) understand that they are giving their property to one or more objects of his or her regard;

(2) have the capacity to comprehend the extent of their property and the nature of the claims of others to whom they are giving nothing under the Will.

In the case of a deceased who committed suicide, a question that may arise is whether a person who is about to commit suicide has the appropriate testamentary capacity to be able to execute a Will?

In that regard, it is important to remember that the onus is on the person who is propounding the Will – in other words applying to the court for an order that the Will is valid. In the usual course, there is certainly no presumption against the testamentary capacity of a testator. Indeed, it is quite the opposite. However, in cases where a proposition is made that a death (suicide) note is the last valid will and testament of a testator, it is more likely that someone may object. That is especially the case where an expected beneficiary is disinherited under such a circumstance.

 

 

As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity.

Suicide, in itself, does not equate to testamentary incapacity – although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind. That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act, has the following requirements in order to be valid:

(1) It must be entirely in the testator’s hand writing; and

(2) It must be signed by the testator.

There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.

Thanks for reading.

Kira Domratchev

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

Testamentary Capacity and Suicide

Will Drafting and Testamentary Capacity

Age and Testamentary Capacity

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

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.

06 Sep

Hull on Estates #483 – Poitras Estate v Poitras, 2015 ONSC 5049

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

This week on Hull on Estates, Paul Trudelle and Laura Betts discuss Poitras Estate v Poitras, 2015 ONSC 5049, (http://bit.ly/2ci3pZL) a recent decision of the Ontario Superior Court of Justice, released August 9, 2016, which deals with the issues of testamentary capacity, undue influence, suspicious circumstances and dependant’s support.

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.

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