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Suspicious Circumstances and Testamentary Capacity

is important that will drafters be aware of and watch for any suspicious circumstances that might exist when taking will instructions. Preparing a will in the presence of suspicious circumstances simply increases the risk that the wills draftsperson might end up testifying about the validity… Read more

Delirium and Mental Capacity | Disinherited Vancouver Estate Litigation

Delirium and Mental Capacity

When discussing the law relating to mental capacity much of the focus is often on dementia such as Alzheimer’s disease, while delirium is often a complicating factor for doctors in assessing mental conditions and lawyers or notaries when assessing mental capacity. Delirium is also known… Read more

Alcohol Related Dementia | Disinherited Vancouver Estate Litigation

Alcohol Related Dementia

Alcohol related dementia is one of a few lifestyle dementias that should be clear and present dangers to society as the numbers appear to be increasing. Anyone who has ever consumed alcohol to excess or witnessed it will know that common symptoms include slurring words,… Read more

Suspicious Circumstances | Disinherited Estate Litigation

Suspicious Circumstances

An important aspect of challenging the validity of a will due to lack of testamentary capacity is to look for suspicious circumstances which if found have the effect of shifting the onus of proof from a presumption of mental capacity to the propounder of the… Read more

Accessing Mental Capacity: MMSE Mental Capacity Tests

Assessing Mental Capacity: MMSE Mental Capacity Tests

MMSE mental capacity tests, also known as Mini Folstein tests are frequently used by the medical profession as a screening test in assessing mental capacity. Lawyers frequently attempt to tender the results of the MMSE results as evidence of lack of mental capacity. The courts… Read more

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity. The court found that the testator who is aged… Read more

Mental Capacity is a Legal Test, Not Medical

Mental Capacity is a Legal Test, Not Medical

The test for testamentary  mental capacity is a legal test and not a medical test. It is very common in testamentary capacity cases to have a conflict not only between the evidence of the medical practitioners, but also between the evidence of the medical experts,… Read more

Predatory Marriage

Predatory Marriage

Probably every experienced estate litigation lawyer has had court actions involving a predatory spouse. The phenomenon is disturbing and increasingly common in our society as individuals both live longer and accumulate more wealth. In simple terms, predatory spouses take advantage of elderly victims and assume… Read more

Litigation Guardian: Lawyers Can Assess Mental Capacity

Litigation Guardian: Lawyers Can Assess Mental Capacity

In Gengenbacher v. Smith, 2016 BCSC 1164, the court examined what is the test that a solicitor must satisfy to determine if the solicitor can represent an individual seeking to be a litigation guardian of an adult under a legal disability and determined that the… Read more

The Court Orders Mental Capacity Exam

Court Orders Mental Capacity Exam

In Re Singh 2017 BCSC 984 the court invoked its parens patriae jurisdiction and  ordered a 93 year old father to undergo a mental capacity examination by two geriatric doctors . Two of his six children claimed that their father was mentally incompetent to manage… Read more

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

Lawyer Duty Taking Will Instructions: Suspicious Circumstances

The duty of a lawyer/solicitor  in taking will instructions when suspicious circumstances are present was discussed in Shroff v Schroff 2017 MBQB 51. Suspicious Circumstances Suspicious circumstances have been found to exist in a wide array of situations and are not necessarily sinister in nature. There is… Read more

Dysfunctional Families: The Predator Spouse

Dysfunctional Families: The Predator Spouse

A disturbing and increasing  trend in dysfunctional families is the advent of the predator spouse who takes advantage of elderly victims and assumes control of usually  financial affairs and marries the victim in short order. Even if the family had been reasonably functional prior to… Read more

Drafting Lawyer Has Heavy Duty to Investigate Testamentary Capacity

Drafting Lawyer Has Heavy Duty to Investigate Testamentary Capacity

Friesen v Friesen Estate (1985) 24 ETR 191 sets out inter alia the heavy duty upon a lawyer taking instructions for a will to investigate and satisfy him or herself that the testator has testamentary capacity. 77      The law reports of England and Canada are replete… Read more

Parens Patriae Jurisdiction of the Courts

Parens Patriae Jurisdiction of the Courts

Re Senini 2016 BCSC 2299 invoked the  the parens patriae  jurisdiction of the courts to declare an adult no  longer incapable of handling her affairs. The parens patriae jurisdiction is  founded on necessity, namely the need for the courts to act for the protection of… Read more

Mental Incompetency and the Patient's Property Act

Mental Incompetency and the Patient’s Property Act

Re Silkstrom 2017 BCSC 206 involved a contested application under the Patient’s Property Act to be appointed the committee of the person of an elderly mental incompetency patient. A Trust company had earlier been appointed to manage the elderly woman’s  financial affairs pursuant to a Power… Read more