All About Estates

Dementia does not Preclude Testamentary Capacity

Unhappy beneficiaries often challenge the validity of a loved one’s will on the grounds that the testator lacked the capacity to execute a will. Applicants use evidence of the testator’s dementia or Alzheimer’s disease (and other mental disorders) to establish that the testator lacked capacity to execute a will. However, it is important to keep in mind that capacity is time specific. A diagnosis of dementia or Alzheimer’s disease, for example, does not automatically translate into a lack of capacity to execute a will (or power of attorney documents). Such was the case in Birtzu v McCron.

Constantin Birtzu died on April 29, 2009 at 86 years of age. He was predeceased by his beloved wife, and survived by his three children (one daughter and two sons) and seven grandchildren. Of the ten surviving family members, only one was a beneficiary to Constantin’s estate: his daughter, Connie.

In his lifetime, Constantin executed three wills:

  • A will in February 1976, wherein, if predeceased by his wife, Constantin left his estate equally to his three children;
  • A will in September 1990, wherein, if predeceased by his wife, he directed Connie to hold his house for her own benefit for ten years, after which she were to sell the house and distribute the sale proceeds among Constantin’s grandchildren, and to divide the residue of his estate among those grandchildren; and
  • A will in January 2006, wherein he left his entire estate to Connie.

Constantin’s wife suffered from Alzheimer’s disease. She moved into a nursing home in 2003. Constantin then sold their matrimonial home and moved into a basement apartment. His wife died in 2005, and Constantin moved in with Connie. Constantin lived with Connie until his death in 2009. Connie became Constantin’s primary caregiver, drove him to his appointments, and built an addition in her home to accommodate her father. Connie’s brothers never objected to or complained about their father’s living and caregiving arrangement.

Constantin’s physician noted Constantin to have early dementia in October 2003; mild dementia and depression in January 2004; and dementia of the Alzheimer’s type in November 2004. Constantin’s long-time friend testified that Constantin’s condition deteriorated one year before his death.

Not surprisingly, Connie’s brothers commenced an action after Constantin’s death to, among other things, challenge the 2006 will on the grounds that their father lacked the requisite testamentary capacity to execute it.

The 2006 will was ultimately upheld. In determining that Constantin had the requisite capacity to execute his 2006 will, the court considered the evidence and testimonies of Connie, the brothers, Constantin’s physician and solicitor, Connie’s neighbour, Constantin’s long-time friend, and Dr. Kenneth Shulman (a geriatric psychiatrist). Connie’s neighbour and Constantin’s long-time friend both testified that Constantin often expressed his wish to leave his estate to Connie.

Before discussing the law on testamentary capacity, it is interesting to note the Connie argued that her brothers did not have standing to challenge their father’s will. Connie argued that her brothers did not have a financial interest in the 1990 will, which would govern if the brothers were successful in challenging the 2006 will. However, Justice Bloom noted Rule 75.03 of the Rules of Civil Procedure to state that the test for having financial standing requires “an appearance of financial interest not proof of one.” Justice Bloom found that the brothers appeared to have a financial interest in the estate as beneficiaries under the 1976 will and on intestacy (by virtue of s 47 of the Succession Law Reform Act).

With respect to the law on testamentary capacity, Justice Bloom cited Banks v Goodfellow (previously blogged about by my colleague, Joanna Lindenberg), and Johnson v Huchkewich, which elaborated on the effect of mental disorder on testamentary capacity.

Justice Bloom further noted Dr. Shulman’s evidence that, “a person’s having dementia does not itself tell you anything about his capacity to make a will. Simply because a person has dementia does not mean that he or she is incapable of making a will.” Justice Bloom stated that the court’s reasoning in Johnson v Huchkewich supported Dr. Shulman’s view.

Dr. Shulman opined that “a dementia diagnosis is suspicious circumstances from a legal conceptual point of view” and that that capacities are time specific. He also advised that he saw no evidence indicating that Constantin’s dementia was so severe that he lacked testamentary capacity. Justice Bloom ultimately decided that, on a balance of probabilities, Constantin had the requisite capacity to execute his 2006 will.

It is important to remember that having dementia or Alzheimer’s disease does not in itself mean that a person lacks capacity to execute his or her will. It may be necessary to consult with a professional to determine whether an individual has or had the requisite capacity to execute his or her will (or power of attorney documents).

About Anna Alizadeh
Anna was called to the Ontario Bar in June 2016. Prior to joining de VRIES LITIGATION LLP, she articled at a full service firm where she developed a strong background in litigation and alternative dispute resolution. Anna also worked on estate litigation files and estate planning matters, and co-authored a chapter on Physician Assisted Dying for Key Developments in Estates and Trusts Law in Ontario, 2015-2016 edition. She obtained her Honours Bachelor of Science in Psychology, with a minor in Biology, from York University, and her Juris Doctor from the University of Ottawa. While in law school, Anna participated in an exchange program in Paris, France, where she obtained her Certificate in French and European Union Law. Anna practices in the areas of estates, trusts and capacity litigation. She is fluent in Farsi and has a professional working proficiency in French. Email:


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