Mental Capacity – No Suspicious Circumstances Found

No one above suspicionTestamentary  ( 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 the executrix and left her the bulk of his estate.

The testator and the wife subsequently separated and a decree nisi of divorce was granted.

The testator subsequently entered into a common-law marriage like relationship with the alleged executrix of a subsequent will.

The testator became seriously ill with liver failure due to years of alcoholism, which manifested itself as a neuropsychiatric abnormality for which he was hospitalised.

While hospitalised, the testator executed a new will which named the common-law spouse as the sole beneficiary and executrix of his will.

The testator died three days later prior to the final decree absolute of divorce, and left his estate of approximately $160,000 cash.

The court case was essentially between the two former partners in which the wife argued that the 2003 will was valid on the basis of suspicious circumstances with respect to the execution of the death and will.

The court allowed the proof of the deathbed will, finding that the circumstances surrounding the preparation of the of the will did not raise the spectre of suspicious circumstances absent allegations of coercion or fraud.

The attending lawyer testified that the testator. Lucid, comprehending questions, and leave clear instructions.

The court found that given the 18th month duration of the testator’s relationship with his new wife, and the uncontradicted evidence with respect to future planning, that was the intention of the deceased to benefit the executrix.

Particularly as the will was simple and the estate was small and uncomplicated, the test for testamentary capacity was fulfilled in the case, and suspicious circumstances were not paid out.

 

LEGAL  DISCUSSION

 

The propounder of a will has the burden of proving that the testator knew and approved the contents of his or her will. In doing so, the propounder is aided by a rebuttable presumption.

38     Once it is established that the will was read by the testator, or the contents otherwise brought to his or her attention, and that he or she appeared to understand it, the testator will be presumed to know and approve of the will: see for example Vout v. Hay, [1995] 2 S.C.R. 876 at para. 26, 125 D.L.R. (4th) 431, in the context of a testamentary gift; Barkwill v. Parchomchuk, 2011 BCCA 207 at para 15; Maddess v. Estate of Johanne Gidney, 2009 BCCA 539 at para. 29; and York v. York, 2011 BCCA 316 at para. 36, 335 D.L.R. (4[th]) 292.

In Vout v. Hay, Sopinka J. at para. 27 referred to the doctrine:

“Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.”

43     As noted by Garson J.A. in York, the testamentary capacity test is set out in the leading English case: Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565, which was adopted by Wilson J.A. in Re: Rogers (1963), 39 D.L.R. (2d) 141 (C.A.) at 148-49, 42 W.W.R. 200:

“It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

48     I find the decision of Bennett J.A. in Maddess instructive in this regard:

[30] This presumption can be rebutted by adducing or pointing to some evidence which, if accepted, would tend to negative the knowledge and approval. This is known as the suspicious circumstances doctrine. If the presumption is rebutted, the propoundeer of the will is required to prove the will on a balance of probabilities. See Vout v. Hay, [1995] 2 S.C.R. 876 at para. 27:

Where suspicious circumstances are present, then the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity. Both of these issues must be proved in accordance with the civil standard. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption simply casts an evidentiary burden on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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