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Wednesday, January 26, 2011

Capacity assessment can short circuit a will challenge

A brand new case in Ontario has said that a daughter's challenge against her mother's will could not proceed, because the mother had had a capacity assessment two days before she made her will that backed up the lawyer's opinion that Mrs. Caron was capable of making a new will. This is an important step, because the judge didn't hear both sides and decide that the mother had capacity; he said that because the capacity assessment was done at the time of the will (and due to some other facts that I'll outline below) there wasn't even an issue about capacity. He granted summary judgment, meaning that in the court's view, there wasn't even a capacity issue to argue about at trial.

Mrs. Caron was 86 at the time she made her will. She died only four months later. She appointed her son John as the executor and left the estate to him. Her daughter, Lorraine, challenged the will on two grounds, one of which was that her mother didn't have capacity to make a will. Lorraine also alleged that John had unduly influenced their mother to make a will in his favour.

As I've noted before, the law turns very much on the specific facts of each case. Mrs. Caron had changed her will four times in the eight years before she died. She would go back and forth between leaving all of the estate to John and dividing it between the two kids. The court took note of that tendency, as well as the fact that there were several capacity assessments done along the line. It was also noted that Lorraine and her mother had had a difficult relationship for years.

Another important factor was that the assessment done right before the final will had been conducted by a doctor who was considered a leading specialist in this kind of assessment, so his report that Mrs. Caron did have capacity was given a lot of weight.

This case offers older parents who anticipate possible estate disputes a way of preventing the need for the children to go through a long, costly trial. We now know that when there is a strong will drawn by a lawyer who documents capacity and there is a medical assessment of mental capacity done by a credible assessor at the same time, it might just be possible to head off arguments before they get to the trial stage.

Might I just add that since no parents ever think this is going to happen in their families, perhaps they should take their lawyer's advice when the lawyer suggests getting a capacity assessment?

In Mrs. Caron's case, the judge did think there was an issue about John improperly influencing his mother against Lorraine. The judge directed that the influence issue had to be hashed out in a trial. If anyone would like to read Justice Tucker's decision, click here.

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