Challenging a Will when there is Competing Medical Evidence

Written on July 4, 2013 – 8:49 am | by Diane Vieira

In a recent decision, the court decided a number of issues regarding a testator’s capacity including the validity of a will and power of attorney documents, the validity of an inter vivos gift, appointing a guardian, and accounting issues in respect of the attorney for property.

The testator, Caterina, currently resides at an assisted living facility.  Three of Caterina’s children, John, Frank, and Salvatore, brought an application challenging the validity of Caterina’s 2005 will and power of attorney documents which appointed Caterina’s fourth son and their brother, Vito, as her attorney for property and personal care and made him the largest beneficiary of her estate.  The applicants alleged that Caterina lacked capacity in 2005 to make a will or appoint an attorney and/or she was unduly influenced by Vito to favour him as a beneficiary and appoint him as her attorney.

Caterina had been experiencing memory loss since 2003 and her cognitive status fluctuated.  The court recognized that the 2005 will was made under suspicious circumstances and Vito as propounder of the 2005 will had the onus to prove that Caterina did not lack capacity to make a will and appoint him as attorney for property and personal care.  Vito relied on the evidence of Caterina’s family physician, the drafting solicitor, and a 2003 geriatric assessment conducted by a specialist who found Caterina to have only mild memory impairment.

When Catherina made her will in 2005, the drafting lawyer, who she had a pre-existing relationship with, suggested she visit her family doctor to get a medical opinion as to her capacity.  Caterina returned to the lawyer’s office with a short note from her family physician indicating her mental capacity was fine.  Like most family physicians, Caterina’s physician was not a recognized capacity assessor nor had any special training in respect of assessing capacity.  He also had no knowledge of the different legal tests applicable when determining capacity.

The applicants filed an expert report by a well-respected geriatric specialist who conducted a retroactive assessment.  The specialist found that Caterina likely lacked capacity in 2005 to make a will and appoint Vito as her attorney for property and personal care.

The court found that Caterina’s 2005 will and powers of attorney were valid.  The evidence of the drafting solicitor, who had an ongoing relationship with Caterina and spoke her native dialect, supported Vito’s claim that his mother did not lack capacity.  The court also recognized the long standing relationship between Caterina and her family physician and his familiarity with her health issues.

However the court also found that by 2008, Caterina lacked the capacity to transfer title of her house to Vito and title was transferred back to Caterina.  The court also went on to remove Vito as Caterina’s attorney and appoint John and Frank as her guardians, in part due to allegations that Vito isolated of his siblings from Caterina.

Thanks for reading,

Diane Vieira

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