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

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

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

Suspicious Circumstances

Arauju v Neto 2001 BCSC 935 is an undue influence /lack of capacity case that discusses suspicious circumstances.   The court found that due to suspicious circumstances the will maker was not allowed to rely upon the presumption that he was mentally capable when the… Read more

Dementia disease

An epidemic of dementia disease is predicted to occur within the next 15-20 years. The most common types of dementia disease such as Alzheimers, frontotemporal dementia, vascular dementia, and Lewy Bodies are expected to dramatically increase by %50  over the next 15 -20 years as… Read more

Committeeship and the Patients Property Act

Re Haston 2016 BCSC 1962 is a good review of the law relating  to the appointment of a committee under the Patients Property Act, as well as the criteria for choosing the best party to be the committee. Once appointed the committeeship voids any Powers of… Read more

Mental Capacity Required to Marry and Separate Incorrect

The BC Court of Appeal was incorrect in finding that the mental test to marry and separate is a low one involving a “ simple” contract. As any of the legions of matrimonial lawyers will tell you, it may be easy to get into this… Read more

Court Termination of Representation Agreements

Baker-McGrotty v Baker 2016 BCSC 699 discuss when the court will exercise its discretion to NOT terminate representation agreements after the appointment of a committee under the Patients Property Act.   26 Section 19 of the Patients Property act provides as follows: 19 On a… Read more

Who Should Be Appointed Committee

The thorny topic of  who should be appointed Committee was discussed in Baker-McGrotty V Baker 2016 BCSC 699. The case involved a representation agreement appointing a care giver but was signed when the patient was severely cognitively impaired, so it was suspect in it’s validity…. Read more

Burden of Proof In Mental Capacity

Burden of Proof In Mental Capacity

Becker v Becker 2016 BCSC 487 nicely summarizes much of the law relating to mental capacity aka testamentary capacity including the law re the burden of proof in mental capacity cases.  THE  LAW 51      The burden of proving testamentary capacity is on the party propounding… Read more

Who Should Be Appointed Committee (Guardian)

Who Should Be Appointed Committee (Guardian)

The vexing problem of who should be appointed the committee (legal guardian) of a demented person under the Patient’s Property Act  RSBC often involves the worst of family “tug a wars” over the financial  and personal affairs of a loved one. The law re who… Read more

S. 52 WESA-Undue Influence Presumption re Dependence

S. 52 WESA is a new provision that applies where a person establishes that a party was in a position where there was potential for dependence or domination of the will maker, and alleges that a gift in the will, resulted from the party using… Read more