Demented Senior’s Will Set Aside For Lack of Capacity

Mental incapacityMaliwat 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.

The testator made one will in 1992 and another in 2006.

He named different beneficiaries in each.

Medical , as well as laypersons evidence, showed that the testator had been suffering advanced dementia at the time 2nd will was made.

The Court found the 2nd will was void for lack of testamentary capacity.

The 1992 will was found to be the last valid testamentary document of the deceased.

It is interesting that type of medical evidence that the court requires in order to find that the deceased lacked testamentary capacity.

The testator was assessed by a geriatric psychiatrist 7 weeks after he signed the the the the the 2nd will, and reported.

-At that time he was unable to state what year it was, when he was born, or when he was married.

-He did not know his address.

-He could not remember any of three objects minutes later.

-He knew nothing of his income, his expenses, bills, his medication, or his illnesses.

The assessment was that he had severe dementia, of the type that progressed slowly and steadily.

Accordingly the court stated that because of his dementia, the testator would not have been able, at the time he signed the 2nd will, to understand the nature and extent of his property, or the effect of the testamentary provisions he was making,nor could he have been capable of forming “an orderly desire as to the disposition of his property.

As an aside, it is also interesting to note that the evidence did not disclose who prepared the 2nd will, or in what circumstances.

This in itself is very suspicious and would rebut the presumption of capacity that each testator has.

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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