Estate Litigation Often Starts With These Questions

Did the Testator have capacity to make a will?  Did the Grantor have capacity to grant a power of attorney?  Courts look to a number of factors to answer these questions.  There are a number of excellent articles and textbooks ¹ that address the tests and difficulties in litigating capacity.  Addressing those issues is beyond the scope of this paper.  The purpose of this article is to address the utility of a retrospective capacity assessment in the face of apparently overwhelming contemporary medical opinion evidence that opines that the person in question had capacity.

The value of a retrospective assessment was addressed in Wilson v. Mack Estate².  The deceased Mary Mack was an alcoholic before her death.  She executed a will and her long time lawyer and family doctor as well as the hospital’s capacity assessors all testified that Mary had the capacity to make her will.  Those doctors were familiar with capacity assessments and the issues involved.  Nonetheless, the plaintiff still did not believe that Mary had capacity.  Mary imagined that the plaintiff, Wilson, stole from her and that was the reason for the disinheritance.  Her lawyers retained Dr. Nathan Herrmann ³ to review all the medical evidence and do a retrospective analysis of capacity.  While he never met the testator, upon his review of the medical evidence Dr. Herrmann was persuaded that Mary lacked testamentary capacity.

It’s important to remember that Dr. Herrmann never treated Mary.  He did not have an opportunity to assess Mary in person. However, he was able to review much of the documentary evidence filed with the court. His evidence was in direct contradiction to the evidence presented by Baycrest’s capacity assessors and of Dr. Hardy (her primary care physician).  Based on the review of the evidence Dr. Herrmann believed:

• Mary likely suffered from delusions about Wilson which affected her testamentary capacity;
• The decision to disinherit Wilson was based on delusional ideation as evidenced by her mental status examination, as well as significant recent memory problems and confabulations;
• The assessors at the Baycrest Department of Psychology did not sufficiently appreciate the pattern of prominent behavioural disturbances, and specifically the presence of paranoia and delusional ideation;
• While Mary was able to superficially appear competent on relatively brief cross-sectional examinations, her long-standing behavioural disturbances and detailed neuropsychological testing clearly indicated significant psycho pathology and cognition disturbances.

So who did the judge believe?  The judge accepted Dr. Herrmann’s evidence over the doctors who treated Mary and assessed her while she was alive.  In paragraph 175 of the judgment, Sanderson J. stated, “While it would have been preferable for Dr. Hermann to have examined Mary in person, and to have tested her himself, he was able to review and interpret the extensive testing done by the Baycrest team. I find his evidence credible and helpful.”⁴

What this case demonstrates is that contemporary medical assessments are not unassailable when qualified expert testimony is sufficiently persuasive.  It would be a mistake to review this case and paper and conclude that courts always accept an expert’s retrospective review of capacity over evidence of doctors who treated the patient.  What this case illustrates is that where medical professionals disagree there is no certainty as to whose evidence will be accepted by the court.