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.
- There are many publications that will prove useful to those examining the issues of capacity. While not meant to be a complete list I refer the reader to a number of publications I have found helpful when considering capacity issues in litigation. They include:
“Revisiting Testamentary Capacity” at the 14th Annual Estates and Trusts Summit, hosted by the Law Society of Ontario, on November 9, 2011.
Trusts & Estates Law, The Challenges Posed by the Issue of Capacity: The Impact Upon Estate Planning, Estate Administration and Estate Litigation, Thursday February 9, 2012 ISBN 978-1-77060-128-4;
Law Society of Ontario Special Lectures 2010, A Medical-Legal Approach to Estate Planning and Decision Making for Older Clients by Brian A. Schnurr and Kenneth I. Shulman
Common Medical Conditions that Might Affect Competence in the Elderly: The 4Ds (Depression, Delirium, Dementia, Drugs), Dr. Nathan Herrmann, FRCPC page 309;
Capacity Assessment by Attending Physician or Capacity Assessor by Dr. Heather Gilley and Dr. Carole Cohen, FRCPC page 301;
Capacity Assessments by the Drafting Lawyer by M. Elena Hoffstein and Joanna Gorman page 309;
Methods of Attacking a Capacity Assessment by Anita Szigeti and Archie Rabinowitz, C.S. page 353;
Chapter 2 of Feeney, Thomas G. & Jim Mackenzie. Feeney’s Canadian Law of Wills, 4th ed., looseleaf (Toronto: Butterworths, 2000);
Estate Litigation, 2nd Ed Brian Schnurr, Chapter 2, Challenging the Validity of Wills;
Susan J. Stamm, Setting Aside the Will, 9th Annual Estates & Trusts Summit, Law Society of Ontario, November 2, 2006;
Hull, Lest We Forget Banks v Goodfellow (2007) 31 E.T.R. (3d) 15;
Judith Wahl, Capacity and Capacity Assessments in Ontario. Available on line at http://www.practicepro.ca/practice/PDF/Backup_Capacity.pdf ;
Kimberly Whaley, “Comparing the Various Tests of Capacity” Law Society of Ontario, 13th Annual Estates& Trusts Summit (November 18, 2010). See http://www.whaleyestatelitigation.com/
Elena Hoffstein and Joanna Gorman, “Capacity Assessments by the Drafting Lawyer” presented at The Law Society of Ontario, Special Lectures 2010 – A Medical-Legal Approach to Estate Planning, Decision-Making, and Estate Dispute Resolution for the Older Client – April 14 and 15, 2010.
Kimberly Whaley et al., Capacity to Marry and the Estate Plan (Aurora: Canada Law Book, 2010);
Brian Schnurr,” When to Challenge and When Not to Challenge a Will: What Should your Advice Be”, Fifth Annual Estates and Trusts Forum November 21, 2002 (LSUC);
Melanie Yach, “Challenging the Validity of a Will based on Lack of Testamentary Capacity”,
Conundrums in Cognition- Legal Issues in Capacity, May 17, 2004 (OBA)
Kenneth I. Shulman, Ian Hull, Carole A. Cohen, “Testamentary Capacity and suicide: an overview of legal and psychiatric issues” 24 Est.Tr. & Pensions J 288. ↵
- 1998 CarswellOnt 3531, (1998) O.J. No. 3733. ↵
- Dr. Nathan Hermann, head of geriatric psychiatry and assistant professor of psychiatry at the University of Toronto, head of the geriatric psychiatry at Sunnybrook Health Services Centre, and consultant to the cognitive support unit dedicated to care of patients with dementia and other cognitive disorders. See http://sunnybrook.ca/research/team/member.asp?t=11&page=1017&m=80 ↵
- As well see Law Society of Ontario Special Lectures 2010, A Medical-Legal Approach to Estate Planning and Decision Making for Older Clients by Brian A. Schnurr and Kenneth I. Shulman
- The Practical Framework—Responding to Common Estate Issues when Representing the Older Client, by Brian A. Schnurr, C.S. page 17;
- The Practical Framework—Responding to Common Legal and Medical Issues of the Older Client by Dr. Kenneth I. Shulman FRCPC page17;
- When Should the Lawyer Consult with the Medical Practitioner? What Should the Lawyer Ask? What Are the Reasonable Expectations? Who Should Be Asked? By Dr. Richard Shulman, FRCPC and Susan J. Woodley, C.S. page 121;
- Capacity Assessment by Attending Physician or Capacity Assessor by Dr. Heather Gilley and Dr. Carole Cohen, FRCPC page 301;
- Kenneth Shulman, M.D., “Psychiatric Issues in Challenges of testamentary Capacity”, Six Annual Estates and Trusts Forum November 20, 2003. Dr Shulman discussed the work of an expert witness. ↵