Tag: Testamentary Capacity

23 Mar

Under the Influence

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

Undue influence and testamentary capacity are two of the most common grounds used to challenge the validity of a will. Often, these cases deal with testators who are older individuals suffering from declining mental health who may also be susceptible to undue influence. However, it is interesting to consider the less common scenario of the testator whose testamentary capacity is questioned due to cognitive conditions that were self-induced.

Health Canada estimates that approximately 4 to 5 million Canadians engage in high risk drinking and the Canadian Alcohol and Drug Use Survey further illustrates the continued prevalence of illicit drugs being used among Canadians. As the test for testamentary capacity involves being able to not only know and understand one’s assets but also to be free from delusions at the time the will is created, it is not difficult to imagine how the will of an individual  suffering from chronic addiction may be more prone to attack.

The Courts have genY3IUCK0FXEerally found that regardless of whether the mental capacity of the testator is impaired as a result of one’s own actions or due to forces beyond one’s control, the legal tests for testamentary capacity and undue influence remain the same. Although external circumstances can provide a better understanding as to what was happening when the document was created, intoxication on its own will not bar someone from making a will.

This approach is consistent with how testamentary capacity is treated in cases where the testator suffered from dementia. Just as it is possible for a person diagnosed with dementia to still meet the legal test to dispose of his or her assets, it is also possible for a person under the influence of drugs or alcohol to retain testamentary capacity. The key is that testamentary capacity must be assessed at the time that the document was created. If the legal test is met at this critical point, the will can be upheld.

However, in the event that the testator’s mental state was altered to the point where he or she no longer understood or appreciated their assets, who their dependant’s were, or were under any delusions, the will can be struck down. This is precisely what occurred in the case of Re: Bradbury Estate (1996 Carswell Alta 323) (“Bradbury”). In this case, the testator was drinking heavily with friends when he drafted a handwritten will leaving everything to one of the friends. The testator was murdered just a few hours later. An expert witness testified that the blood alcohol level of the testator indicated that at the time the will was created, he would have no longer possessed any critical judgment. Given the circumstances under which the will was executed, it was apparent that the testator lacked the testamentary capacity to prepare and execute a will and the will was declared invalid.

With respect to undue influence, cognitive impairment due to substance abuse may give rise to suspicious circumstances, as it did in Bradbury. This will have the effect of rebutting the presumption of testamentary capacity. However, circumstances can vary widely and as a result, creating a will while under the influence (even at the direction of another) will not necessarily lead to a presumption of undue influence.

Thank you for reading.

Suzana Popovic-Montag

03 Feb

Alzheimer Awareness Month: #StillHere

Suzana Popovic-Montag Capacity, Elder Law, General Interest Tags: , , , , 0 Comments

As Alzheimer Awareness Month draws to a close, the message the Alzheimer Society of Canada intended to convey in the #StillHere campaign is clear: A diagnosis of dementia does not necessarily mean that an individual is no longer capable of functioning in their daily life.

According to the Alzheimer Society, dementia is often misunderstood. As a result, there can be many stigmas attached to a diagnosis that can impact a person’s ability to effectively manage the disease. For instance, in a survey conducted where participants were asked whether a person living with dementia can continue to live well, half of the respondents answered that they believed that they could not. It is these types of misconceptions and negative attitudes towards dementia that the #StillHere campaign set out to change.

Challenging these perceptions is not always easy. The #StillHere campaign has provided an excellent start with educational videos and stories from persons living with dementia in an effort to encourage the public to test their assumptions. As the Alzheimer Society notes, dementia exists on a spectrum and people with dementia can continue to engage with society in meaningful ways.

In the context of estate litigation, it is quite common to witness the effect that these preconceptions can have. For instance, a will is not automatically invalid as a result of the testator having been diagnosed with dementia prior to its execution. The test for testamentary capacity must be applied and in many cases, it can be found that despite such a diagnosis, the testator was still capable of meeting this standard.

The same can be said with respect to Powers of Attorney for Personal Care. A diagnosis of dementia does not automatically assume that the individual is incapable and that the attorney can now make personal care decisions on their behalf. The diagnosed individual must first be found to be mentally incapable pursuant to s. 45 of the Substitute Decisions Act; a finding that is not necessarily synonymous with a diagnosis of dementia.

Despite legitimate challenges associated with mental impairment, it is important to recognize that a diagnosis of dementia does not immediately suggest the loss of individuality or identity. There is no doubt that dementia is progressive and can eventually lead to severe cognitive impairments; however, as the Alzheimer Society so aptly notes in their campaign, “Life doesn’t end when Alzheimer’s begins.”

Thank you for reading.

Suzana Popovic-Montag

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

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

04 Aug

Hull on Estates #427 – Lucid Intervals

Hull & Hull LLP Hull on Estates, Hull on Estates, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , , , 0 Comments

Today on Hull on Estates, Paul Trudelle and Josh Eisen look at the concept of the lucid interval in the context of testamentary capacity and examine recent research that raises some doubts about whether a person can temporarily regain capacity after he/she has been impaired.

Should you have any questions, please email us at webmaster@hullandhull.com, or leave a comment on our blog below.

Click here for more information on Paul Trudelle.

Click here for more information on Josh Eisen.

29 Jul

Lucid Intervals?

Suzana Popovic-Montag Capacity, Health / Medical Tags: , , 0 Comments

In a forthcoming article to be published in The Journal of the American Academy of Psychiatry and the Law, Ian Hull and Dr. Kenneth Shulman, among others, explore the concept of the lucid interval. A lucid interval is a legal concept invoked by those propounding a will to claim that a testator, suffering from some cognitive decline, experienced a moment of cognitive clarity sufficient to make a valid will. The medical term associated with this phenomenon is a “cognitive fluctuation.” Or in layman terms, we often refer to a person, who suffers from significant cognitive decline (such as dementia), as having “good days” and “bad days.”

However, recent medical findings on the subject of cognitive fluctuations suggest that this legal defence may have some challenges, namely, with regard to duration, significance and superficiality.

First, medical data suggests that any cognitive fluctuations are extremely short in duration, often in the realm of seconds or minutes. Such short-term changes in mental state are unlikely to allow a testator to appreciate all the factors needed in order to make a valid will. Second, medical data suggests that even if a testator could achieve some degree of mental lucidity, the fluctuations are so small and insignificant that no formerly incapable person could become temporarily capable so as to make a valid will. Finally, Hull and Shulman contend that higher level cognitive functions—such as memory and executive functioning (the ability to identify, evaluate and discriminate among various options)—are necessary to achieve testamentary capacity. And even when cognitive fluctuations occur, they occur in the area of alertness and attention—which are more superficial, lower level cognitive functions.

However, it is important to keep in mind that testamentary capacity is a legal concept that focuses not on a testator’s general mental state but on their mental state in the context of making a will. As such, it remains uncertain as to how courts will treat this data.

Regardless of which way courts interpret the new medical data, it is important that clinical realities inform legal decisions as they can and do enlighten courts with regard to this complex issue.

Thank you for reading.

Suzana Popovic-Montag

15 Jul

Lest We Forget: Assessing Testamentary Capacity

Suzana Popovic-Montag Capacity Tags: , , 0 Comments

Testamentary capacity is a legal term that seeks to ascertain whether an individual met the necessary cognitive threshold so as to be capable of making a will. It is not a general medical question of cognitive soundness. Instead, it is limited in scope to the context of this one, very specific task—making a testamentary instrument.

The legal criteria for determining testamentary capacity generally invokes words such as “know”, “understand” or “comprehend.” That is, in assessing testamentary capacity one of the key considerations is often defined by reference to what is inside the testator’s mind. Courts and medical experts have asked such questions as: Did the testator understand the nature of making a will? Was the testator able to comprehend and appreciate the claims to which they ought to give effect? In essence, the focus of testamentary capacity has often been on what was in the mind rather than what was missing from the mind.

While the legal criteria for testamentary capacity remains mostly unchanged, medical understandings of psychopathology and cognition have significantly evolved. Of course, medical questions are different from legal questions, and medical advancements may yet fit within the frameworks of existing legal reasoning. However, courts rely on medical experts to help assess whether or not a person was capable of completing the task of executing a testamentary instrument, and it is incumbent upon the legal community to listen to what medical experts tell us.

One such advancement in understandings of cognition is with regard to memory, particularly within the context of assessing whether a testator could comprehend and appreciate the claims to which they ought to give effect. In her paper, “Reflections on changes in defining testamentary capacity,” published in the International Psychogeriatrics journal, Australian capacity expert, Dr. Carmelle Peisah, says,

“Many of the neuropsychological deficits typically associated with common forms of dementia may influence the appraisal of relationships with intimate and diffuse others…. Deficits in working memory may render a person with dementia unable to appraise their relationships in the context of the past and present simultaneously. This may render them prone to making shallow, superficial and impulsive judgments of people or situations.”

Further, she says, “impairment in autobiographical memory may make it difficult to retrieve meaningful, relationship-focused events and feelings from the past.” In other words, it is important to assess whether the testator could identify, evaluate and discriminate among various people and their potential claims.

As such, when determining whether a person possessed the requisite cognitive capacity to make a will, it seems important to consider not only what the testator knew but to also consider what they may have forgotten. Even if the existing legal framework holds, advances in cognition offer opportunities for greater clarity and precision with regard to assessments of testamentary capacity.

Thank you for reading.

Suzana Popovic-Montag

06 Jul

Moral Obligations Temper Testamentary Freedom

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

Testamentary Freedom—the ability to leave one’s property to whomever one wishes—is a principle long held in the common law of Canada. But as evidenced by legislative reforms and recent jurisprudence, testamentary freedom is not absolute and will likely continue to encounter challenges as society and the law develop. Strangely enough though, current challenges to testamentary freedom are not altogether different from the sorts of considerations that go into other well-established will challenges.

One well-established basis for challenging a will is called testamentary capacity. In my book, Challenging the Validity of Wills, I define testamentary capacity as the ability of the testator “to know and understand that one is executing a testamentary document disposing of assets, the general value and nature of which are known to the testator or testatrix, after having considered all persons having a moral claim to the assets being disposed of” (at p. 19).

The leading case on the law of testamentary capacity, Banks v Goodfellow (1870), L.R. 5 Q.B. 549, though nearly 150 years old, offers an insightful look at one rationale for testamentary freedom. The court says, “The instincts, affections, and common sentiments of [hu]mankind may be safely trusted to secure on the whole a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law” (at p. 817).

The rule of testamentary freedom is “founded on the assumption that a rational disposition”—or a disposition based on the rational choices of the testator—is better than one imposed by law (at p. 817).

However, in order to make rational choices, the testator must be of a sound mind. That is, they must have capacity to make a will. The reason a sound mind is so important, says the court in Banks v Goodfellow, is because of the moral responsibilities people have to others. The court reasons that if the law [as it was then] permits people the freedom to do what they want with their property, then courts must make sure that testators have testamentary capacity because “a moral responsibility of no ordinary importance attaches to the exercise of” testamentary freedom (at p. 817).

In other words, with great freedom comes great responsibility.

Testamentary capacity was a means to ensure that people were capable of carrying out their freedom responsibly. Failure to fulfill one’s moral responsibilities (such as, provision for a spouse or a next of kin) was one factor that aroused the suspicion of the court, and when issuing decisions, it was a key consideration in a court’s assessment of the testator’s capacity.

The point is:  courts have long recognized that moral responsibilities attach to testamentary freedom. In 1870, testators were absolutely entrusted by the law to fulfill their moral responsibilities. However, that not always being the case, succession law has developed to ensure some of those moral obligations are met (for example, one’s moral obligations to one’s spouse or to a dependent). It may be possible to describe developments in succession law as giving greater affirmation to our individual and collective moral responsibilities. As such, one might ask whether the future of succession law will continue to develop along those lines, namely, giving new definition to what constitutes a moral obligation in the twenty-first century.

Thank you for reading.

Ian Hull

18 Mar

Inheritance Expectations

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

Last week I blogged about the anticipated transfer of wealth to the Millennial generation.  While the Millennials are expected to inherit in the next few decades, the Baby Boomers have already inherited and continue to inherit their parent’s fortunes. However, some may be quite disappointed when the waiting comes to an end.

A Maclean’s article from January discusses the expectation of inheritance popular among middle-aged Canadians. It highlights the BC case of Bull Estate v. Bull, arising from David Bull challenging his mother’s uneven inheritance amongst her children – David and Susan. After David inherited significantly less than his sister from both his father and then mother’s estates, he opposed the verification of his mother’s 2010 Will in its solemn form.

In his case, David alleged that his mother had progressive dementia in the years leading up to the execution of her Will. The trial judge found against David, that the Will was, in fact, valid and it was so proven.

One piece of evidence the trial judge referred to in his decision was a Statement of Wishes left by Mrs. Bull, which was to be opened and read by David only if he contested the Will. It explained the reasons behind the unequal testamentary bequests, highlighting a laundry list of poor behaviour by David from the past.

While the circumstances of this case, in which a testator favours one child over the other(s), is not unusual, it serves as a reminder of testamentary freedom. Professional witnesses testified to Mrs. Bull’s sharp mind and clear expression of her wishes. While testators must be of sound mind and, at times, must adhere to moral obligations upon death, they also have the freedom to dispose of their estate how they please.

Although David is said to be appealing the case, the decision of Justice Gary Weatherill stands in the meantime.

Also of note is the realization that one’s inheritance may not be as expected. The Maclean’s article further noted that a large number of Baby Boomers expect some sort of inheritance and that many overestimate how much they will inherit. In a time when Baby Boomers are carrying debt, this may be an unwelcome surprise.

Thank you for reading,

Suzana Popovic-Montag

11 Nov

Hull on Estates #395 – Testamentary Capacity and Undue Influence

Hull & Hull LLP Hull on Estates, Hull on Estates, Podcasts, PODCASTS / TRANSCRIBED, Show Notes Tags: , , , , , 0 Comments

Listen to Hull on Estates #395 – Testamentary Capacity and Undue Influence

Today on Hull on Estates, Andrea Buncic and Natalia Angelini discuss the concepts of Testamentary Capacity and Undue Influence in relation to Narcissistic Personality Disorder, and other mood disorders. This topic was recently presented by Ian M. Hull and Dr. Kenneth Shulman at the 17th Annual Estates and Trusts Summit on November 4, 2014.

If you have any questions, please email us at hull.lawyers@gmail.com or leave a comment on our blog page.

Click here for more information on Andrea Buncic.

Click here for more information on Natalia Angelini.


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



Hull e-State Planner is a comprehensive estate planning software designed to make the estate planning process simple, efficient and client friendly.

Try it here!