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

Severance of Joint Tenancy By Power of Attorney Upheld

Severance of Joint Tenancy by a Power of Attorney Upheld   Houston v Houston Estate 2012 BCCA 300 upheld the severance of the joint tenancy through the use of a power of attorney despite the fact that the attorney. stood to gain financially in a… 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

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

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

Mutual Wills Severed Joint Tenancy Ownership

Brewster v Lenzi 2010 BCSC 1488 is an interesting decision involving mutual wills between a husband and wife, that ended with their joint tenancy ownership being severed. Mutual wills cases are somewhat unusual in that the overwhelming number of the wills made between spouses are… 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.