All About Estates

A medical perspective on Estate matters – a chastened viewpoint

I am very pleased to join the Allaboutestates blog to add a perspective on the role of the physician in estate matters. I recall vividly the first time I was asked in court: “Dr. Shulman, in your opinion did Mr. X have testamentary capacity at the time he executed his last Will?” Before I could answer, the judge lowered his reading glasses and looked down at me from above and asked (rhetorically): “That is my job isn’t it?” At that awkward moment I had an epiphany – it was clearly not my role to offer an opinion that was the same task as that of the judge. I shifted from that point to emphasize that as a medical expert I was offering a ‘clinical opinion’. This was in recognition of the fact that a ‘clinical opinion’ was only one of several factors that a judge must take into account in coming to a legal decision. Other factors include: other clinical opinions, precedent case law, as well as lay evidence. However, I have moved even further away from offering a ‘clinical opinion’, to offering the court clarification about the nature and severity of any psychiatric, neurologic or medical disorders that may have affected a testator’s mental state, cognition or judgment. Further, the medical expert can help the court understand how the impact on mental state relates to the task-specific capacity in question and how it affects the individual’s understanding and appreciation of the situation-specific factors extant at the time of the execution of the legal document in question, whether a will or POA.

In future blogs, I hope to share some insights and clinical pearls from a medical perspective so that lawyers can better understand how medical disorders affect mental capacities with a particular focus on testamentary capacity and capacity to make a Power of Attorney. I hope we can establish a fruitful dialogue that is an essential aspect of creating an informed legal opinion with appropriate, objective and constructive input from medical experts whose role it is to help the court and not offer competing opinions. The cultures of law and medicine are very different but in Estate matters are inter-dependent and should work collaboratively to create the best judgments possible.

About Dr. Ken Shulman
Dr. Shulman graduated from the Faculty of Medicine, University of Toronto in 1973 and did postgraduate training in Psychiatry at the University of Toronto. He then went on to do specialty training in Geriatric Psychiatry in London, England. Since 1978, he has been based at Sunnybrook Health Sciences Centre, University of Toronto. He is the inaugural recipient of the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, University of Toronto. Currently, he is the Chief of the Brain Sciences Program at Sunnybrook. Dr. Shulman has had a longstanding interest in the issue of testamentary capacity and vulnerability to undue influence and has been qualified as an expert witness in Estate matters in Ontario and Alberta. Together with colleagues he has published several papers in the area of testamentary capacity in international journals and is a frequent presenter at legal continuing education conferences on Estates and Trusts. Email: