Testamentary Capacity

Total 43 Posts

Disclosure of Medical Records: Privacy Matters

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In Gilbert v. Girouard, 2023 ONSC 4445, a brother and sister brought a challenge to their father’s wills. The siblings alleged that their third sibling, who was named as estate trustee, exerted undue influence over their father. They also alleged that their father lacked testamentary capacity at the time of signing the wills. In order to gather the necessary evidence to support their claim, the siblings brought a motion to….

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Contested wills, Estate Litigation, Estate Planning, Executors, Family Conflict, Testamentary Capacity, Undue influence, Wills

The Life and Legacy of Gina Lollobrigida – An Estates Perspective

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Today’s blog is written by Jessica J. Butler, Law Clerk at Fasken LLP. Italian cinema legend Gina Lollobrigida passed away at the age of 95 in January 2023.  Known by fans as ‘La Lollo’, she starred in over 60 films which included the likes of Frank Sinatra and Sean Connery. Gina’s legacy includes a past fraught with disputes considered to be some of the most common and ‘classic’ wills and….

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Capacity Law, Contested wills, Elder Care, Elder Law, Estate Administration, Estate Administration and Probate Applications, Estate Litigation, Estate Planning, Family Conflict, International, Testamentary Capacity, Undue influence, Wills

Gefen Estate v. Gefen

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The Ontario Court of Appeal (“ONCA”) decision in Gefen Estate v. Gefen is an interesting read which provides insight into a variety of topics including mutual wills and mutual will agreements, secret trusts, the doctrine of unconscionable procurement, and more! By way of background, Elias and Henia Gefen were married for 65 years. They were Holocaust survivors who came to Canada in 1951. They had three sons: Harvey, Harry, and….

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Appeals, Capacity Law, Estate Administration, Estate Litigation, Family Conflict, Joint Tenancy, Power of Attorney, Real Estate, Testamentary Capacity, Uncategorized, Undue influence, Wills

The Bio-Psycho-Social Approach to Capacity Evaluation

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Current approaches that define capacity in cognitive terms disregard concerns that emotional instability may disrupt capacity or that a person may be cognitively intact yet lack the capacity to give a valid consent. An alternative evaluative approach would be to view capacity holistically, as a combination of biological, psychological, and social (biopsychosocial) factors…..

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Capacity Law, Elder Care, Elder Law, Estate Litigation, Fiduciary Professions, Geriatric Care Management, Guardianship, Healthcare, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Testamentary Capacity

Suspicious Circumstances – For Wills Only

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Because the doctrine of suspicious circumstances was developed in respect of probate and wills, it cannot easily be exported into other areas of law, including contract law…..

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Capacity Law, Contested wills, Contracts, Estate Litigation, Estate Planning, Executors, Geriatric Care Management, Property, Real Estate, Testamentary Capacity, Trustee, Undue influence, Wills

Update on Suggested Amendment for Capacity to Consent to MAiD

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I suggest “an appreciation of the impact MAiD will have on family members and friends” be included in fulfilling the proposed amendment of the appreciation test for consenting to MAiD. The proposed amendment would not mandate being bound by others’ opinions, but that that lack of ability to appreciate the views of one’s significant others would demonstrate a lack of ability to apply the relevant information to one’s circumstances…..

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Capacity Law, Elder Care, Elder Law, Family Conflict, Fiduciary Professions, Geriatric Care Management, Healthcare, Medical Assistance in Dying, Testamentary Capacity, Undue influence
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