Joint Tenancy Transfer Between Parent and One Child Set Aside

Turner vTurner 2010 BCSC deals with a common thorny issue in estate litigation.

In 1996 the deceased parent put title to her home into joint tenancy with one of her two children.

The deceased died in 2007 leaving a will that left the sale proceeds of the house equally between both sons.

The house was her only asset, and if the joint tenancy was a “true” joint tenancy, then by right of survivorship, the house would only pass to the surviving joint owner.

The court grappled with the issue that the will ignored the JT transfer that had taken place a decade earlier.

The court held that the surviving joint owner held his property interest in trust for his late mother, and thus the house formed part of her estate, and was shared equally between the sons as per her will.

The court found that the deceased had not received proper legal advice when the JT was created

For example, it was not explained o her that a gift cannot be taken back, while a will can always be changed

Mr. Justice Verhoeven held that James Turner did indeed hold the house on a resulting trust for the estate. The law in British Columbia is that when a parent transfers assets gratuitously to an adult child, there is a presumption that the child holds the assets in trust for the parent and the parent’s estate. This is a presumption only, and may be rebutted if the child can show that the parent intended a gift.

Where the transfer is gratuitous, or made to a fiduciary, the law generally presumes that a resulting trust has been established. This is because equity presumes a bargain and not a gift. Pecore vPecore 2007 1 SCR 795

Where there is a resulting trust, the transfer is effective to convey legal title( ie your name shows as a registered owner), but the equitable, beneficial title remains with the transfer or: Niles v Lakes (1947) SCR 291

Will Upheld- No Suspicious Circumstances

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 testamentary capacity.

The deceased mother had one son, now also deceased, and two daughters, one of whom died prior to matter proceeding to trial.

The mothers’ will left her rest in apartment building, worth over $5 million, to her with the under of $8 million estate evenly divided between children.

The daughter was sole heir of the deceased son and she brought an  application for an order pronouncing her mother’s will in solemn form.

The trial judge granted the order and  concluded that the will was valid, and that there was nothing that amounted to suspicious circumstances.

The trial judge found that the concerns about the mother’s English skills and business understanding did not affect her testamentary capacity.

The defendant’s estate appealed and the appeal was dismissed .

The trial judge applied the correct legal test  and the Trial judge’s conclusion that the presumption of validity applied was fully supported by the evidence.

 

  • “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 that 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.

 

  • 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 (S.C.C.) 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.

  • The Appellant relies heavily on this passage from Vout. So did the trial judge. The trial judge clearly and carefully set out the applicable law. The test is “adducing or pointing to some evidence, which if accepted, would tend to negative the knowledge and approval”. The important aspect of the test is not “some evidence”, it is “some evidence… that would tend to negative the knowledge and approval.” The trial judge found that none of the evidence met the requirement of negating “knowledge and approval”. For example, the trial judge found that the fact that Rosalie Racz did not speak very good English did not, in and of itself, tend to show that she did not have the required knowledge. The fact she was not sophisticated in business, again, does not tend to show that she did not know the effect of her clear instructions to Mr. Mazzei.”

– See more at: http://www.disinherited.com/blog/appeal-court-upholds-wills-validity-and-finds-no-suspicious-circumstances#sthash.uLnHyBzm.dpuf

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.

Court Finds Will Valid -Testator Not Delusional

Delusional 2Hsia 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 to his surviving three daughters and did not provide for the two children of the murdered daughter.

The defendants unsuccessfully argued that the deceased lacked testamentary capacity at the time he signed the will by reason of suffering from insane delusion that in order to erase pain of the murder of his daughter, he had to abandon his relationship with her two children, to the extent of excluding them from his will.

The court dismissed this argument and admitted the will into probate finding that the deceased was a rational and functioning member of society in 1973, that there were no suspicious circumstances of the kind necessary to displace the presumption of testamentary capacity.

His reaction to his daughter’s death was not suggestive of an insane delusion or pathological denial of her death, but was simply an expression of his personal grief.

Moreover his relationship with the grandchildren did not cease abruptly, but instead diminished over time to the point where it was almost nonexistent, which may partly be by reason caused by  her surviving husband remarrying  very shortly after her death.

Moreover, the deceased surviving three children had a greater material needs then the two grandchildren did at that time.

 

The Courts comments re capacity are as follows:

 

 

” as the propounder of the will has the burden of proving testamentary capacity. The test for testamentary capacity has been variously expressed. A comprehensive and frequently cited explanation of what it entails is that of Laskin J.A. (as he then was) in Schwartz (Re), [1970] 2 O.R. 61 (C.A.) at p. 79, where he wrote:

…The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property…

[43]    In proving testamentary capacity, the propounder has the benefit of a rebuttable presumption. Sopinka J. held at para. 26 of Vout v. Hay.

[26]     .. .Although the propounder of the will has the legal burden with respect to… testamentary capacity, the propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity.

[44]    I have concluded that the will of Mr. Yen was “duly executed with the requisite formalities” and inferred that he knew and approved of its contents. Subject to the question of “suspicious circumstances”, it is presumed that he had the necessary testamentary capacity.

[45]    The presumption of testamentary capacity is a rebuttable, and as Rothstein J. pointed out in Pecore v. Pecore, 2007 SCC 17 at para. 22:

[22]      … rebuttable presumption of law is a legal assumption that a court will make if insufficient evidence is adduced to displace the presumption. The presumption shifts the burden of persuasion to the opposing party who must rebut the presumption…

[46]    To rebut this presumption the defendants must establish suspicious circumstances that tend to call into question the capacity of the testator. As Sopinka J. put it in Vout v. Hay at para. 27, the force of the presumption will be spent, or the burden it imposes will be met, by those attacking the will:

…adducing or pointing to some evidence which, if accepted, would tend to negative… testamentary capacity. In this event, the legal burden reverts to the propounder.

[47]    Thus, the issue is whether there is some evidence which, if accepted, tends to call into question the capacity of Mr. Yen to make a will valid.

 

[48]    The defendants have pleaded that:

  1. The mother of these Defendants, who was the daughter of the Deceased, was murdered in August 1972. This caused mental pain and anguish to the deceased.
  2. These Defendants say that the Deceased suffered from an insane delusion that in order to erase the pain and anguish from his mind of the murder of his daughter, he had to abandon his relationship with the children of his murdered daughter, which abandonment included their exclusion from his Will.

[49]    The defendants correctly state that the first issue that arises in these circumstances is whether the evidence is such that it should “excite the suspicion of the court” to the degree necessary to spend the persuasive force of the presumption and cause the onus of proving capacity to revert to the plaintiff. The second issue is, assuming the presumption is rebutted, whether the evidence establishes on a balance of probabilities that the testator had the necessary capacity.

[50]    The notion of an “insane delusion” was considered by Cockburn C.J. in Banks v. Goodfellow. It has remained a part of the law of testamentary capacity since. According to Feeney’s Canadian Law of Wills, 4th ed., “a delusion is a belief in a state of facts which no rational person would believe” (at para. 2.9). In Banton v. Banton (1998), 164 D.L.R. (4th) 176 (OntC.J.), Cullity J. adopted the following definition of “insane delusion” at para. 32:

[32]      …”A delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination) against all evidence and probability and conducts himself however logically upon the assumption of their existence.”

[51]    Not any insane delusion will be sufficient to support a finding of lack of testamentary capacity. The delusion must bear some rational connection to the bequests in the will.

SEVERANCE OF JOINT TENANCIES BY A COURSE OF DEALING

SEVERANCE OF JOINT TENANCIES

This article is an update on a recent development of the law in this area subsequent to the author’s previous article entitled “Severance of Joint Tenancies”, and located on disinherited.com.

 

Joint tenancy is a method in which two or more persons may hold property together, with the unique feature that one of the owners dies, his or her interest automatically passes to the survivor(s) by right of survivorship.

 

Severance is the legal process of converting a joint tenancy arrangement into a tenancy in common. The latter method of ownership does not have the automatic right of survivorship that the joint tenancy has.

 

Accordingly there is an increasing trend in both estate and family litigation to carefully examine whether the joint tenants, often spouses, acted in a course of conduct that intimated that the interests of the joint owners were mutually treated as constituting a tenancy in common. The financial rewards of whether or not a parcel of real property devolves on death to a surviving joint tenant, or alternatively that the deceased’s one half portion of the property in a tenancy in common passes to his or her estate pursuant to a will are huge.

 

It may well be, if examined closely, that the parties have even unwittingly indicated at some point in time that the ownership of jointly held property should be treated as a tenancy in common rather than as a joint tenancy with right of survivorship (JTROS)

 

THE ONTARIO CASES

 

Hansenv Hansen Estate 2012 9 RFL (7th) 251,75 ETR (3d) 19, a decision of the Ontario Court of Appeal, is a decision which dictates close observance. As of the date of publication of this article it has not yet been applied or considered in British Columbia, and has only been subsequently distinguished in Ontario by the subsequent Su v Lam decision which follows.

 

The Ontario Court of Appeal followed the chestnut decision relating to the severance of joint tenancies, Williams v. Hensman (1861) 70 E.R. 862 for these three manners in which joint tenancies may be suffered namely;

1.         Unilaterally, by acting on one’s own account, such as selling or encumbering one’s share;

2.         by mutual agreement between the co-owners to sever the joint tenancy;

3.         any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common (the course of dealing rule).

 

Mr. and Mrs. Hansen married for the second time in 1983. Both had children from previous relationships. In 2003 they purchased a property as joint tenants. Financial and marital troubles subsequently ensued with Mrs. Hansen moving out of the home in March 2010.

 

The husband retained a lawyer with respect to this marital breakdown and he was instructed to prepare a new will for him leaving everything to his daughters and nothing to his wife.

 

Mrs. Hansen also retained a lawyer who sent a letter to the husband’s lawyer indicating a desire to negotiate a separation agreement including a division of the property.

 

The parties began to close their joint bank accounts, and prepared financial statements for exchange in furtherance of their settlement negotiations, but before settlement could be finalized Mr. Hansen suddenly died.

 

Mrs. Hansen asserted a right of survivorship in the home and took the position that is a surviving joint tenant she was entitled to the entirety of the property.

 

The executors of the deceased’s will applied to the court for a declaration that the widow was entitled to only an undivided one half interest in the property by reason of the fact that the parties course of dealing had served to sever the joint tenancy.

 

Mrs. Hansen won at trial, but Court of Appeal overturned that decision, and pronounced that with respect to the application of the course of dealing just in Ontario:

 

1.         severance by course of dealing does not require proof of an explicit intention to sever the joint tenancy – the mutual intention can be inferred from the course of dealing between the parties and does not require evidence of agreement;

2.         severance by course of dealing does not require that each owner knew of the others position and that both treated their interest in the property as no longer being held jointly – this could be inferred from communications or conduct;

 

3.         the determination is an inherently fact specific assessment;

 

4.         the purpose of severance by course of dealing is to ensure that one owner does not unfairly obtain the benefit of the right of survivorship where the parties have shown a common intention to no longer treat their interests in the property as an indivisible unified whole.

 

The appeal court in fact stated that the trial judge erred in not appreciating the facts that the parties, amongst other things, prepared a new will, negotiated a division of their assets, and they opened separate bank accounts, acts that were sufficient conduct to sever the joint tenancy.

 

As stated by Chief Justice Winkler at paragraph 7:

” the court’s inquiry cannot be limited to matching fact patterns to those in prior cases. Rather, the court must look to the co-owners’ entire course of conduct – in other words the totality of the evidence – in order to determine if they intended that their interests were mutually treated as constituting a tenancy in common. The evidence may manifest itself in different ways. Each case is idiosyncratic and will turn on its own facts”.

 

Prior to Hansen, the Ontario law had been In Re Walters (1977) 16 O.R. (2d) 702, affirmed 17 OR (2d) 592, (Ont. CA), where the court held that a severance had been affected through the couples’ course of conduct where they had negotiated to buy each other’s interests in the matrimonial home in the course of their separation.

 

British Columbia Law

 

Hansen Estateis of notable surprise to British Columbia practitioners by reason of a 1993 BC Appeal Court decision Tompkins Estate v. Tompkins, Vancouver Registry CA 015039,  which had contrarily held that in order to satisfy the “course of dealing” test, one party must detrimentally rely on the others representation that he or she no longer wants to hold the property jointly.

In other words, in British Columbia,  the current law is that the party asserting that the joint tenancy has been severed, must prove not only that both parties treated their interests as separate, but also that they relied on the other parties representations or actions so that it would now be unjust for the other party to assert that joint tenancy.

 

The Ontario court in Hansen, held that such detrimental reliance was not necessary and the test could be satisfied simply by virtue of each party being aware of the other’s intentions and by both parties treating their interests in the property is no longer being held jointly.

 

By BC standards, the Ontario Court of Appeal found severance of the joint tenancy on rather marginal evidence of intention to mutually treat their matrimonial home as a tenancy in common.

 

The Ontario Court of Appeal however has traditionally been regarded as very persuasive throughout the Canadian courts, and it should not be a surprise if the BC Courts adopt the reasoning of Hansen in future, especially if given the right facts to do so.

 

The second Ontario decision of Su v Lam 2012 77 E.T.R. (3d) 278, (Ont. SCJ), applied Hansen and stated that the mutual intention of the parties as demonstrated by their conduct, must be assessed, and that the intention must be mutual.

 

On her death in 2004 the testator left her estate to her two grown children and appointed her estranged spouse as executor. In other legal proceedings, the plaintiff was found to be the testator’s common-law husband and that the testator had a legal obligation to provide support to him upon her death. Prior to the testator’s death she owned to real estate investments in joint tenancy with her estranged husband.

 

The common-law spouse argued that the joint tenancies between the deceased and her estranged husband had been severed prior to her death, and that the value of the properties constituted an undistributed residue of her estate.

 

The court found that there had not been any severance of the joint tenancies, as the testator had not acted on her own share with respect to the joint tenancies, nor had there been any mutual agreement existing between her and her estranged husband to sever the joint tenancies.

 

There is a high threshold that exists to show joint tenancies are severed through a course of conduct between the testator or her estranged husband and the mere fact that the testator and the estranged husband are separated is insufficient to establish severance.

 

When the parties liquidated their real estate holdings after their separation, neither the testator nor her estranged husband conducted their affairs in a way to suggest that in doing that the joint tendencies had been terminated. No evidence existed that the testator or the estranged husband had entered into negotiations the ownership following the test their separation. The fact that the testator maintain the properties without assistance from the estranged husband was not of its own, evidence of severance. Accordingly upon the testator’s death the properties became owned by the estranged husband by right of survivorship.

 

CONCLUSION

 

The continuing meld of estate, real property and family law principles all come to fore when examining whether or not the course of dealings of parties to a joint tenancy ownership have or have not resulted in a severance of a JTROS. It is reasonably common for parties, married or otherwise, to have disputes and perhaps enter into a course of dealings that might appear to treat jointly held properties as tenancies in common, that may subsequently be forgotten about and a reconciliation achieved only to have argued many years later in an estate litigation dispute, that the course of dealings many years prior had the effect of severing the joint tenancy of property now worth millions. Most spousal joint tenants simply do not appreciate the legal consequences that one or more of the following acts, may result in a severance of a JTROS property:

 

1.         closing joint bank accounts and opening separate accounts;

2.         preparing a new will disposing of the property, to the exclusion of the other,

3.         the expression of an intention to negotiate a division of property, including the subject property;

4.         one owner vacating the premises;

5.         the intention expressed to litigate if a settlement cannot be reached;

6.         the requirement of one party buying out the other’s interest as a condition to stay in the property;

7.         the expressed intention to appraise the property for negotiation purposes.

 

The Hansen case giv

Joint Tenant Interest Set Aside For Unjust Enrichment

 

Joint Tenant Interest Set Aside for Unjust Enrichment Reasons

Just because a person is registered as a joint tenant in a parcel of property does not mean that the person actually has a beneficial Interest in and to the property, and joint tenancies can be set aside on such a basis.

The BC case of Borkenhagen v Kessler 2012 BCSC 467 is just such a situation. A married couple as plaintiffs made an agreement with their defendant aunt that they would purchase a condo and allow the aunt to reside as a tenant for as long as she wished or was able.

The aunt was registered on title as a joint tenant on title, along with the plaintiffs, in order to satisfy the strata corporation that she was an “owner and not renter.”

The arrangent was satisfactory for many years until the aunt questioned how much longer she had to pay, and asserted a one third interest in the joint tenancy.

The couple brought court action for a declaration that they were the sole owners of the condo, and succeeded on two grounds: One, that it was a resulting trust and the aunt could not rebut the presumption that she held the property in trust as she had not paid for it.

In addition, the parties were not domestic partners and they had no common intention that each of the parties would make a common contribution to the purchase price, and Two, that

disinherited.com cautions families to be very careful about such “loose” arrangements as it would appear that the parties, while well intentioned, seemed to have very different notions as to what the legal situation was to be, with the aunt thinking that since she was registered on title, then all her “rent cheques” should be attributed towards the purchase price A simple requirement of the strata corporation that only ” owners” and not renters could live there undoubtedly contributed to the confusion Both parties should have had independent legal advisors I before the condo was purchased.

Doctors Speak a Different Language

Doctors Speak a Different Language

I had the benefit of recently hearing prominent geriatric psychiatrist Dr. Donnelly.

She discussed various aspects of testing for mental capacity and in particular when dealing with the legal profession in seeking a medical opinion about same.

Mental capacity is  a legal test – did the person have sufficient mental capacity when he or she signed the will or the transfer of land etc.?

To her credit Dr. Donnelly instructed the attending lawyers that they should specify in detail exactly what they want the doctor  to tell them and in response to specific questions pose the physician.

For example, she mentioned that most lawyers do not even instruct the doctor  as to the legal test for mental capacity, when most doctors, especially family physicians, really have no training or experience in understanding the legal concept, and very little training if any in testing for capacity.

If possible, it is highly preferable that the testing for mental capacity be performed by a geriatric psychiatrist in the case of the elderly, or a psychiatrist in the case of non-geriatrics

I will share aspects of her presentation upon my receipt of them in the future.

I pointed out to her and the audience that the problem is even worse than she described, in that lawyers and doctors do not even use the same words to have the same meaning.

I pointed out for example that the word acute, to a medical doctor means a sudden onset while two lawyers in the general public it means severe.

Similarly alert means awake in medical terms but to others is generally considered to be much more almost to the point of being smart

Lucid to a doctor means that the patient is oriented times three, (he or she knows who they are, where they are, and the date),  whereas to the general public the word lucid again usually means much more.

I also pointed out that lawyers deal with the concept of the test in civil proceedings being on the balance of probabilities, “is it more likely than not.”?

Doctors do not understand this concept unless they are instructed by the lawyers, as to the appropriate legal test to apply when providing their medical opinion.

Dr. Donnelly agreed that doctors are typically trained and think  as scientists who use the scientific method.

They do not  understand the legal concept of causation, or  the thin skull rule in tort law, or any other legal concepts, without the lawyer explaining the  concept to the doctor.

In my almost 40 years of experience with dealing with the medical profession I can categorically state that there is often tension.

That tension can often be broken by the lawyer phoning  the doctor, making it clear that the doctor will be paid for his or her time, and asking to speak with the doctor, in person if possible, in a quiet setting after hours.

The lawyer should then review the file and the opinion sought, in person before it is written, and educate the doctor in the legal concepts and test to be applied when considering the preparation of the medical opinion.

– See more at: http://www.disinherited.com/blog/doctors-speak-different-language#sthash.6NwDhiis.dpuf

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 performing a mental state medical examinations.

The doctor should firstly obtain all of the medical and psychiatric notes will him him as well as an outline of the contents of  value of the testator’s estate. This is crucial.

The assessment should always take place face-to-face, and when dealing with the elderly elderly suspected of havinag dementia, it should probably take place in the patient’s own resident so as to reduce anxiety, which can greatly affect the test results..

Many patients have fluctuating capacity scores and the doctor should test on several occasions over a period of time in order to get a more complete diagnosis

The doctor should of course keep detailed contemporaneous notes as well as be informed and instructed by the solicitor as to the legal test for capacity (Banks  v. Goodfellow )

The assessment should definitely be conducted in the absence of anyone who stands to benefit from the will or who might exert influence on the testator.

This is very important in that doctors are typically under a great deal of time pressure and often allow caregivers and other interested parties to provide the history to the doctor, rather than hearing it directly from the patient’s mouth. The patient may very well be unable to express him or herself and thus get lost in the process.

Medications, language barriers, serious depression and general reluctance to be examined are also common problems confronting the physician when conducting a mental assessment of the elderly.

From a legal perspective the standard of proof for court decisions as to whether a person lacks or has testamentary capacity, is on the balance of probabilities, and not beyond a reasonable doubt as is required in criminal cases.

The doctor should understand this and perhaps approach the issue as ” is it more probable than not that this patient lacks or has testamentary capacity?”

During the assessment it is necessary that leading questions, that is questions that suggest the answer, should be avoided as much as possible.

In order to conduct a proper assessment of testamentary capacity, it is necessary to probe the mind and ask detailed questions where the answer is not suggested.

The content of previous wills should be discussed and the reasoning with respect to a new will should be elucidated, particularly where a close family member previously included in a will is now being disinherited.

 

The following table are the various criteria with which the doctor will individually address when performing the mental state examination:

The mental state medical examinations:

Appearance:    posture, dress, personal hygiene, grooming.nonverbal communication, manner, etc

Behaviour:      restlessness, threatening behaviour, degree of cooperation, etc

Mood:          subjective and objective description

Affect:            blunted, inappropriate, appropriate or depressed

Speech:           rate {pressured or slow), volume, tone, quantity, appropriate/inappropriate content, dysarthria, or dysphasia Perception:     hallucinations (auditory, visual, olfactory, gustatory or tactile). depersonalisation or derealisation

Thought:         Stream: slow (psychomotor retardation) or fast (flight of ideas)

Form: illogical, fragmented, logically connected or disjointed

Content : overvalued ideas, delusions, suicidal and homicidal thoughts,  preoccupations, or phobias

 

Insight:                patient’s awareness and understanding of the condition and treatment

Cognition:       Mini Mental State Examination and other cognitive tests Judgement:     response to hypothetical scenarios (e.g. what would you do

if you found a sealed, stamped and addressed envelope on the street

Rapport:         demonstration of warmth, ability to partake in the

doctor-patient relationship

– See more at: http://www.disinherited.com/blog/mental-state-medical-examinations#sthash.RUJr1WKa.dpuf

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 “sound disposing mind”:

“It is essential that a testator shall understand the nature of the act and its effect; 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 delusions shall influence his will in disposing of his property and bring about the disposal of it which, if his mind had been sound, would not have been made.”

These essential elements of the judgement are paraphrased and summarised in Table 1. These criteria represent the standard reference in the assessment of testamentary capacity and are repeatedly invoked in the international literature on the subject They form a reference base for most American and English commonwealth courts.

The essential elements of the Banks v Goodfellow judgement paraphrased from

Lord Chief Justice Cockburn.3

  1. The testator/testatrix must be capable of understanding the nature of the act of making a will and its consequences, (i.e. the person understands what a will is. when it comes into effect, that it can be changed at a later date, the role of the executor, etc)
  2. The testator/testatrix must be capable of understanding the extent of his/her estate, (i.e. property jointly or solely owned by them, other assets, insurance policies, etc)
  3. Whilst the competent testator/testatrix will ultimately decide who the beneficiaries shall be, he/she must demonstrate understanding of the logical claims of those who might expect to benefit from his or her will. This applies to both those being included and those being excluded from the will.
  4. The testator/testatrix must be capable of understanding the practical effect of the wilL (i.e. who receives what, the impact of the will on the beneficiaries and on those who are excluded, the impact on any previous will, the impact of any changes from a previous will, the impact of any conditions attached to the will, that a beneficiary might pre-decease him/her, etc)
  5. The testator/testatrix must be free of any disorder of mind or delusions (i.e. mental illness) that shall influence his/her will and bring about a disposal of his/her property which, if his/her mind had been sound, would not have been made.

– See more at: http://www.disinherited.com/blog/what-constitutes-testamentary-capacity#sthash.oA7Hewcj.dpuf

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 requested to provide opinions on typically an elderly patient’s ability to handle his or her financial or personal affairs, and to make a will.

I was flabbergasted the first time I cross-examined a family physician as to how much training he had undergone in medical school as to the evaluation of a person’s mental capacity, and he answered none.

Since that was 20 years ago, I have asked many doctors since then, and the answer never appears to be much more than about an hour, maybe.

The fact of there is no standardized tool for medical practitioners to which to refer in the assessment of mental capacity speaks volumes.

Most family doctors are simply too busy to make the proper inquiry and often fall into the trap of asking the caregiver accompanying  the patient as to the problem, treatment etc. rather than taking the time to ask  or explain to the patient him or herself.

Times are changing dramitically, and it is important for the medical profession to literally pull up its socks and learn more about the assessment and proper documentation of the early signs of dementia and to instigate the proper referral and/or treatment at an earlier time.

The population is not only aging, with a greatly increased amount of accumulated wealth, but has also grown multi-fold in its complexities as a result of divorce, remarriage, common-law relationships, same-sex relationships, deliberate single parents, multiracial/religious blending of families, etc., all of which is not only going to lead to an increase in estate litigation, but will also put greatly increased demands on the medical profession to provide opinions on their patients mental capacity.

From a legal perspective, a doctors understanding of mental capacity may very well be different from the legal test, and is important for the lawyer when asking the doctor for an opinion as to a patient’s mental capacity, to properly instruct the doctor as to the legal test.

 

More will be said on this topic in subsequent blogs.