Taking Instructions and Testamentary Capacity

Will makers must always conduct an assessment of mental capacity when taking will instructions. In 1992 I was Plaintiff’s counsel in the decision Mikita v. Lick. The action involved a 10 day trial, in which I succeeded in setting aside a will and transfer, prepared… Read more

Delusions and Testamentary Capacity

Delusions are often overlooked as a cause for lack of mental capacity. I was recently retained by a sister of a deceased person who advised that in her opinion, she had been disinherited from her late brother’s will as a result of his cocaine abuse…. Read more

Mental Capacity And Marriage

Mental Capacity And Marriage

The law is currently in error with respect to this area, stating that only a low level of capacity is required for marriage. I question in light of that, why about one quarter of lawyers earn their keep trying to get people out of the… Read more

The Doctrine of Suspicious Circumstances

The Doctrine of Suspicious Circumstances- From Laszlo v Lawton 2013 SCBC 305 [200] In Vout v. Hay, [1995] 2 S.C.R. 876 [Vouf\, the Supreme Court of Canada laid to rest the thread of confusion that had emerged in earlier decisions concerning the burden of proof… Read more

Mental Health Withdraws Support For Psychiatrists DSM-5

 Mental Health and The Controversial DSM5 Psychiatrists like to put labels on mental disorders and use the DSM for such use.The new DSM-5 seems to be causing controversy within the mental health business.Considering that not long ago, the DSM classified such things as homosexuality as… Read more

Testator Must Know General Value of Assets to Have Mental Capacity

Mental Capacity and Knowing the Value of  Testators Assets Part of the criteria in proving mental capacity of a testator involves showing that the testator understood the nature and the extent of the property being disposed of by the will. The question that is often… Read more

Almost Everything You Need To Know About Testamentary ( Mental) Capacity

Testamentary  ( Mental) Capacity The decision Laszlo v Lawton et al 2013 BCSC 305 is a series of stellar reasons for Judgement by Madam Justice Ballance, including a thorough review of the law of testamentary capacity. The deceased died in 2008 at age 84 years,… Read more

Will Upheld- No Suspicious Circumstances

Validity of a Will and Suspicious Circumstances Maddess v Racz 2009 BCCA 539 is a testamentary capacity case where the trial judge and the court of appeal both uphold the validity of a will and find no suspicious circumstances that would rebutt the presumption of… Read more

Mental Capacity – No Suspicious Circumstances Found

Testamentary  ( Mental) Capacity and Suspicious Circumstances Machander v Drader 2012 BCSC 1496 is a court case where testamentary capacity was found to exist and suspicious circumstances were not made out. The deceased executed a will in 2003 in which he named his wife as… Read more

Court Prefers Lawyers Opinion Over Doctor’s On Mental Capacity

  Moore v Drummond BCSC 1702 is not the first decision where the evidence of the lawyer who  prepared a will  is preferred over that of a family doctor, on the issue of whether or not a deceased  had mental capacity to prepare a will. One… Read more

Court Finds Will Valid -Testator Not Delusional

Hsia v Yen-Zimmerman 2012 BCSC 1620 raised the allegation that the will of the deceased was invalid due to his lack of capacity caused by a delusion arising out of the murder of his daughter in 1972.   His will made in 1973 left everything… Read more

Aggressive Narcissism – There Is Only Win or Lose

Disinherited.com is indebted to the Atlantic magazine on this extraordinary article re aggressive personality disorder, that appears all too frequently in estate disputes. Regrettably, it is not considered a factor in determining mental capacity, but is simply a “personality disorder”. Aggressive Narcissism : Lance Armstrong… Read more

Second Medical Examination of Ederly Man Refused

The BC Court of Appeal dismissed an application that an elderly man undergo a second mental assessment examination On February 12, 2012 I blogged the Supreme Court  decision in Temoin v Martin 2011 BCSC 1727 The Court of Appeal in reasons for judgment cited at  2012… Read more

Demented Senior’s Will Set Aside For Lack of Capacity

Maliwat v. Gagne 2009 BCSC 1447 is perhaps a typical, if there is such thing in estate litigation, case of an advanced demented senior signing a will late in life, that is subsequently overturned for lack of mental capacity.