Mental State Medical Examinations

Disinherited.com recently blogged that the medical profession as a whole is woefully lacking in training and experience in the assessment of testamentary capacity. The purpose of this paper is to provide a brief overview of some of the criteria that a doctor should utilize when… Read more

What Constitutes Testamentary Capacity?

What Constitutes Testamentary Capacity? Banks v Goodfellow- The “Old Chestnut” Is Still The Leading Case The most commonly cited criteria for testamentary capacity were established in the English case of Banks v Goodfellow.3 In this case, Lord Chief Justice Cockburn outlined his understanding of a… Read more

The Medical Profession Is Woefully Unprepared to Assess Mental Capacity

The test for mental capacity to prepare a will is a legal test and not a medical one, although the court will always be interested in the opinion of the medical practitioners, particularly those who were treating the deceased. Accordingly, family doctors have been occasionally… Read more

Joint Tenancy In Matrimonial Home Severed By Owners “Course of Dealing”

Joint Tenancy In Matrimonial Home The Ontario Court of Appeal decision Hansen v Hansen Estate 2012 CarswellOnt 2051 is an excellent example to illustrate how co-owners of a property, held as joint tenants with a right of survivorship, can through a course of dealing, legally convert… Read more

25 Tips For Drafting Better Wills and Minimizing Liability

25 TIPS   FOR DRAFTING BETTER WILLS and MINIMIZING LIABILITY   1.        Take your time. Be cautious. Seriously consider charging your actual time on a Wills file. If your client objects, then educate the client about the amount of time needed to prepare a… Read more

Will Set Aside For Lack of Capacity re Delusions Towards Next of Kin

Will Set Aside For Lack of Capacity Re Fawson Estate 74 ETR (3d) 86 is an interesting Nova Scotia case to do with mental delusions that voided the deceased’s last will on the basis that she lacked testamentary capacity. The deceased had no children or… Read more

Court Orders Property Sold

A court may order co owned property sold and stipulate the terms of the sale, especially when one owner is unreasonable. I have previously blogged about the case of Mondonese v Delac Estates at both the trial and appeal levels. The Court had found that… Read more

Mental capacity 2

Court Ordered Medical Examinations

Temoin v Temoin 2011 BCSC 1727 concerned the mental incompetency of an 87-year-old wealthy businessman and a court order sought to have him medically examined. The businessman’s daughter commenced and incompetence proceeding stemming from her discontent with changes made by her father to his will… Read more

Who Are Your “Nieces & Nephews”?

Will Construction re Nieces and Nephews Re Holmes Estate 2007 BCSC 51,  involved a childless testator who was predeceased by his wife . His will provided in part that residue of his estate be “paid and transferred over to all my nieces and nephews” He had eleven… Read more