The legal test for testamentary capacity is well-established in Ontario. In making a determination of whether or not an individual had the capacity to make a will, the evidence of a certified capacity assessor is often given great deal of weight. However, scientific developments have led to a new type of assessor of a person’s mental health. Meet Ludwig, an artificially intelligent robot who was created to track and monitor signs of Alzheimer’s disease or dementia.

Before it can be determined what kind of effect Ludwig (or his future friends) may have on estate and capacity litigation, it is good to review the basics of the test for capacity. The English case of Banks v. Goodfellow, which has been adopted in Ontario, sets out the criteria that must be satisfied for a testator to have the capacity to make a will. The test is as follows:

1. The testator understands the nature of making a will and its effects;
2. The testator understands the extent of the property being disposed of;
3. The testator understands the nature of the act and its effects;
4. The testator appreciates the claims to which he or she ought to give effect; and
5. There is no “disorder of the mind that shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Ordinarily, if a testator’s capacity is in question, he or she will be referred to a professional who conducts a thorough assessment to determine whether the person is capable of making a will pursuant to the criteria set out above. This may involve multiple meetings with the testator to review his or her assets and various tests to determine their cognitive abilities.

Ludwig was developed by a research team at the University of Toronto. His creators have attested, “he’s so good, he can detect subtle changes in speech and vocal patterns that might escape retirement home staff…” While Ludwig’s creators predict that artificial intelligence will play a large role in elder care going forward, it is yet to be determined how reliable these methods will be and how well they will stand up in court. In addition, it has yet to be seen whether Ludwig will take responsibility for drafting the final report on the assessment. These questions and others remain to be seen, but Ludwig introduces a novel and added dimension to the world of estate and capacity litigation.

The Winnipeg Free Press Article introducing Ludwig to the wider world can be found here.