Testamentary Capacity

Total 44 Posts

Is it Improper for Counsel to Assist an Expert Witness in the Preparation of the Expert’s Report?

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Expert evidence constitutes an exception to the rule that witnesses may only testify as to facts, not opinions, and that it is the exclusive prerogative of the trier of fact to draw inferences from proven facts. The expert evidence exception operates where specialized knowledge is required to determine the implications of the facts where the trier of fact is not competent to draw the necessary inferences unaided. The Rules of….

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Estate Litigation, Testamentary Capacity

Where’s There is a Will (and a Clear One), There is a Way!

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In Campbell v Evert 2018 ONSC 593, the deceased had, in the decade prior to her passing, transferred to Mr. Evert (one of the “kids”) the family cottage valued at $145,000. In her will later that year,  she made a specific bequest of $145,000 to Ms. Campbell, the other “kid’, which was consistent with the value of the cottage at that time. Several years later and prior to her passing,….

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Contested wills, Estate Administration, Estate Administration and Probate Applications, Executors, Property, Real Estate, Testamentary Capacity, Trusts, Uncategorized, Wills

Undue Influence by “Unwitting Proxy”

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Undue influence results in benefits to a beneficiary/donee which would not have occurred except for the undue influence imposed by the beneficiary/donee upon the testator/donor. Undue influence can be conceptualized into two distinct types: (1) “actual” undue influence and (2) “presumed” undue influence. Actual undue influence is concerned with coercive or deceptive behaviour. As explained by Lord Justice Lindley in the seminal case of Allcard v. Skinner,[i] actual undue influence….

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Capacity Law, Elder Law, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Resulting Trust, Testamentary Capacity, Trustee, Trustee Disputes, Undue influence

Medical Assistance in Dying (MAiD) and Undue Influence

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In 2015, the Supreme Court of Canada held that the ban on Medical Assistance in Dying (MAiD) was unconstitutional (for a summary of the decision, click here). However, MAiD is not available to all persons; to qualify, a person requesting MAiD must have a grievous and irremediable medical condition including an illness, disease or disability. In its seminal decision, Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court of….

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Capacity Law, Disability, Elder Care, Elder Law, Geriatric Care Management, In the News, Testamentary Capacity, Undue influence

More than a Suspicion: The Minimal Evidentiary Threshold

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A recent Ontario decision, Martin v. Martin [1], considered the minimal evidentiary threshold required to obtain documentary discovery in a will challenge as set out in Seepa v. Seepa.  For further background on Seepa, read Rebecca Studin’s previous blog post on that decision. In Martin, the Applicant (the named Estate Trustee) sought an order removing the Notice of Objection of the Respondent, his sister, to his appointment as Estate Trustee….

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Estate Litigation, Testamentary Capacity, Wills

Capacity Assessments and Biases to Beware of

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Capacity assessments regarding capacity to manage property, testamentary capacity or capacity to appoint a power of attorney for property (POA), whether conducted contemporaneously or retrospectively, rely upon whatever materials/information that is provided to an assessor to review. Materials may include relevant medical records, previous wills and POA documents, interview of the person if done contemporaneously or videos and/or audio recordings of the deceased if retrospective, and affidavits within legal briefs…..

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Capacity Law, Elder Law, Estate Litigation, Guardianship, Powers Of Attorney and Guardianship Disputes, Testamentary Capacity
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