Written on May 22, 2013 – 10:36 am | by Angela Casey
A recent Manitoba case serves as a reminder that simply because a person suffers from a mental illness does not necessarily mean that she lacks the requisite capacity to make a will.
Although Ann Ogilvie suffered from schizophrenia for more than 50 years, she was capable of making a will, found Justice Greenberg of the Queen’s Bench of Manitoba in Hoffman v. Heinrichs.
Ann’s illness was found to be a suspicious circumstance, thereby shifting the onus of proving testamentary capacity on the beneficiary seeking to uphold the will. The will challenger presented evidence that the testator suffered from delusions, behaved in a flat and unresponsive manner, and had been hospitalized from time to time for her condition. A treating physician’s letter to a relative approximately 10 months before the will was executed said that placement in a nursing home was indicated for Ann on a long term basis.
However, the Court found, “one cannot draw any conclusions regarding capacity simply from the fact that a person suffers schizophrenia, especially when the person is being treated. Whether Ann had testamentary capacity must be determined on the basis of the evidence as to her abilities at the time the will was executed.”
The challenger also argued that Ann lacked sufficient knowledge of her assets to meet the test for testamentary capacity. Although she knew that she owned farm land and bonds, she did not know the value of either of those two assets. In the circumstances of this case, however, it was not critical that Ann know the exact value of her assets because whatever their worth, she wished to leave everything to her twin brother.
Once again, the drafting solicitor’s notes were an invaluable tool in proving the will. Although the solicitor had no actual memory of meeting with the testator 30 years earlier, the solicitor’s contemporaneous memo was critical to establishing that the testator had sufficient testamentary capacity to make the will. In the trial judge’s words, “[w]hile the applicant argues that the fact that [the drafting lawyer] prepared a memorandum indicates a concern about Ann’s capacity, I accept [the drafting lawyer’s] evidence that she prepared the memorandum because Ann was excluding her siblings from her will and that might generate a challenge to it. As it turns out, this was prescient on her part”.
Thanks for reading,