Mental Capacity: G.P. Evidence Admitted as Expert

Mental Capacity: G.P. Evidence Admitted as Expert

On of the grounds for appeal in Wilton v Koestlmaier 2019 BCCA 262 was that the trial judge erred in admitting the family doctor’s (GP’S) testimony on mental capacity because she was a family practitioner without any specialization or formal education in geriatric medicine in the assessment of testamentary capacity.

The appeal court rejected this argument, and upheld the trial judge’s discretion in allowing the family Dr. to provide expert evidence on mental capacity to be admitted as evidence.

A trial judge’s decision to admit or exclude expert evidence is a discretionary ruling entitled to deference on appeal. R v DD (2000 ) 2 SCR 275 at paragraphs 12 – 13, 47.

This is so because trial judges are in a better position to assess whether such evidence is necessary or whether the danger of admitting the evidence outweighs its benefit. The courts exercise of discretion is reversible only where the court has misdirected itself, came to a decision that is so clearly wrong that it amounts to an injustice, or where the judge gave no or insufficient weight to relevant considerations. Penner v . Niagara Regional Police Services Board (2013 SCC 19 at paragraph 27.

The court held that the trial judge did not err in admitting or relying upon the family doctors expert report, as evidence regarding the deceased’s health from her physician at the time the codicil in question was executed is highly relevant to the legal determination of testamentary capacity.

It was necessary for the judge to determine the extent of the deceased physical and mental impairment following her stroke in 2004, and the effects of these would have on her ability to make and understand the codicil. The family Dr. was a very experienced doctor with specific knowledge of the deceased medical history and health.

The court accepted the doctor’s medical qualifications and found her to be an independent, impartial and unbiased witness.

The appellants in essence argued that the family Dr. was not qualified to render an opinion on testamentary capacity because she was a family for practitioner without any specialization the assessment of testamentary capacity.

The court rejected this argument, as it misapprehended the legal assessment of testamentary capacity, which is necessarily rooted in the judge’s appreciation of the evidence, be it medical or otherwise.

Testamentary capacity is a legal determination for the judge to make, not a medical diagnosis made by experts.

A judge is not required to defer to the opinion of any medical expert, and a doctor is not required to have special expertise in geriatric medicine in order to provide evidence to assist the court in determining an individual’s legal capacity to make wills.

The trial judge determined that the probative value of the family doctors medical report outweighed any prejudicial effect, it might’ve had and relied on the report for her conclusions regarding the health of the deceased in or around the time that the codicil in question was executed.

Mental Capacity and Medical Records

Mental Capacity and Medical Records

Re Singh Estate 2019 BCSC 272 reviewed the law of both mental capacity as well as the admissibility of medical records under s. 42 Evidence Act and supporting case law.

The court admitted the medical records as business records for the fact that the statements therein were made.

The direct observations of the various medical practitioners in the hospital records are admissible and relevant to the issue of suspicious circumstances.

Hospital records, including nurses notes, made, contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.

The principles were stated in McTavish v . McGillivary (1997) 38 BCLR (3d) 306 at 311 – 12:

1) the notes taken must be made, contemporaneously;
2) the notes must be made by someone having a personal knowledge of the matters being recorded;
3) the notes must be made by someone who has a duty himself or herself to record the notes or to communicate the notes to someone else to record as part of the usual and ordinary course of their business;
4) the matters which are being recorded must be of the kind that would ordinarily be recorded in the usual and ordinary course of that business;
5) a statement in the records of the fact that a certain diagnosis was made will be admissible;
6) recorded observations, diagnosis and opinions will be admissible providing they are recorded in accordance with points 1 through 4;
7) the fact that the referring Dr. relied upon another Dr.’s opinion to assist in coming to his or her own diagnosis and opinion is only evidence of that fact, so that the other opinion does not become evidence unless it is otherwise admissible. Accordingly, it is only evidence of the fact that the referring Dr. wished or required that opinion to be received before forming his or her own opinion;
8) statements made by parties or by experts which are recorded in the usual and ordinary course of business, but which lie outside the exception to the hearsay rule are hearsay and will not be admitted into evidence unless they can be brought within section 14 of the evidence act, which allows for the admissibility of such statements. If it can be shown that they are proof of a prior inconsistent statement.

Cambie Surgeries Corp. v BC (AG) 2018 BCSC 859 held that any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact.

Identifying Undue Influence

A checklist for identifying a relationship of domination and dependence that might involve a situation of undue influence is:

1. Explore whether will-maker is in a relationship of dependency, domination or special confidence or trust.

Sample questions to consider:
• Do you live alone? With family? A caregiver? A friend?
• Has anything changed in your living arrangements recently?
• Are you able to go wherever and whenever you wish?
• Does anyone help you more than others? Who arranged/suggested this meeting?
• Does anyone help you make decisions? Who does your banking?
• Has anyone asked you for money? A gift?

2. Explore whether will-maker is a victim of abuse or neglect in other contexts.

Sample questions to consider (note need for tact, discretion and awareness for client’s physical safety; refer to community resources if and when appropriate):
• Has anyone ever hurt you? Has anyone taken anything that was yours without asking?
• Has anyone scolded or threatened you? Are you alone a lot?
• Has anyone ever failed to help you take care of yourself when you needed help?
• Are there people you like to see? Have you seen these people or done things recently with them?
• Has anyone ever threatened to take you out of your home and put you in a care facility?

3. Obtain relevant information from third parties when possible and if the will-maker consents.

4. Obtain medical assessment if mental capacity is also in question, but remember that mental capacity to make a will is ultimately a legal test.

5. Compile list of events or circumstances indicating undue influence.

Undue influence: Red flags to watch for

This list is not necessarily complete or definitive. It is an aid to practitioners to identify potential undue influence and provide an “index of suspicion” so that they will be alerted to carry out the necessary inquiries before preparing a will for execution.

(a) Will-maker invests significant trust and confidence in a person who is a beneficiary or is connected to a beneficiary (e.g. lawyer, doctor, clergy, financial advisor, accountant, formal or informal caregiver, new “suitor” or partner).

(b) Isolation of will-maker resulting in dependence on another for physical, emotional, financial or other needs.

(c) Physical, psychological and behavioural characteristics of will-maker.

• Dependence on beneficiary for sight, hearing, mobility, speech, illness, illiteracy.
• Signs of neglect/self-neglect (emaciation, inappropriate clothing, bruising, untreated injuries).
• In state of shock after stressful situation (e.g. bad news, death of close person).

(d) Non-specific factors (e.g. loneliness, sexual bargaining, end-of-life issues).

(e) Cultural influences/conditioned responses (e.g. subservience to traditional authority in extended family; yielding to pressure for fear of revealing family conflicts leading to loss of face in community).

(f) Impaired mental function from a psychiatric condition or a non-psychiatric cause (e.g. trauma or stroke).

Examples of impaired mental function:
• Sudden onset of confusion.
• Short term memory problems, disorientation, difficulty with finances.
• Signs of depression (e.g. irritable, agitated, difficulty making decisions, sad face, bowed head, general lethargy).
• Delusions.
• Extreme sense of well-being, continuous speech, inability to concentrate, poor judgment.
• Apprehensive or appearance of being worried, distressed, overwhelmed.
• Client is intoxicated/signs of substance abuse.
• Down’s syndrome, autism or other developmental disorder.
• Inability to answer open-ended questions.

(g) Circumstances related to making of the will and/or the terms.


• Unusual gifts; sudden change for no apparent reason; frequent changes.
• Marked change in instructions from prior wills.
• 3rd party initiates instructions which also benefit 3rd party; beneficiary speaks for will-maker; beneficiary offers to pay for new will; will-maker relies exclusively/unusually on notes to give instructions.
• Spouses: joint retainer but one spouse provides instructions while other remains silent.
• Recent death of a family member and other family appear to influence changing existing will.

(h) Characteristics of influencer in will-maker’s family or circle of acquaintance.


• Overly helpful.
• Insists on being present during interview with practitioner.
• Contacts practitioner persistently after instructions are taken.
• Person is known to practitioner to have history of abuse, including violence.
• Practitioner observes negative and/or controlling attitude to will-maker.
• Practitioner is aware that influencer is in difficult financial circumstances and/or engages in substance abuse.

(i) Practitioner’s “gut feeling”.

• Body language of will-maker indicates fear, anxiety, insecurity, embarrassment, etc.
• “Influencer” is off-putting or difficult to deal with at appointment.
• “Influencer” is rude to staff in office or on telephone, or is overly solicitous.

Delirium and Mental Capacity

Delirium and Mental Capacity | Disinherited Vancouver Estate Litigation

When discussing the law relating to mental capacity much of the focus is often on dementia such as Alzheimer’s disease, while delirium is often a complicating factor for doctors in assessing mental conditions and lawyers or notaries when assessing mental capacity.

Delirium is also known as acute confusional state in the sense that acute means a sudden onset.

There is a great variety in the severity of deliriums and they can vary a great deal in their severity over a short period of time.

Delirium is not a disease but is rather a set of symptoms that are usually caused as a result of an underlying disease, a drug or alcohol abuse/withdrawal, and other medical conditions.

By medical definition delirium must be caused by an organic process and not be related to the symptoms of a specific mental illness.

Basically delirium is the common manifestation of a new “brain dysfunction” for any reason.

Delirium is the single most common acute disorder affecting adults in general hospitals. It affects 10 to 20% of all hospitalized adults, and 30 to 40% of elderly who are hospitalized and up to 80% of all those in intensive care.

Delirium is an abrupt change in the brain that causes mental confusion and emotional disruption. The patient finds it difficult to think, remember, sleep, pay attention and more.

Common conditions causing delirium are:

• Alcohol withdrawal
• organic brain syndrome
• severe infection
• kidney failure
• following surgery

Delirium has been described as a disorder of attention, wakefulness, cognition, and motor behavior, while a disturbance and attention is often considered the cardinal symptom.

Inattention is the cardinal and required symptom to diagnose delirium and it is noticeable on interview by distractibility and inability to shift and or sustain attention.

Delirious patients have diminished comprehension and reduced grasp of their surroundings and difficulties in connecting with their immediate environment, it executive functioning, memory, insight and judgment.

Psychotic symptoms occur in up to 50% of patients with delirium and some have hallucinations or delusions.

Delirium of most commonly affects seniors and those of ill health.

The medical treatment for delirium is typically to focus on the underlying organic reason for the cause of the delirium. This may or may not involve the use of antipsychotic medication.

It is useful information for lawyers to know when preparing wills and assessing mental capacity, that patients who have undergone surgery may experience delirium for several days and then recover.

I would venture to say that during the episodes of delirium that the patient/ client lacks mental capacity to understand and sign legal documents such as a last will and testament.

Suspicious Circumstances

Suspicious Circumstances | Disinherited Estate Litigation

An important aspect of challenging the validity of a will due to lack of testamentary capacity is to look for suspicious circumstances which if found have the effect of shifting the onus of proof from a presumption of mental capacity to the propounder of the will having to prove mental capacity.

In addition to testamentary capacity, the propounder of a will must establish “that the testator knew and approved of the contents thereof.” With regard to this requirement, the Supreme Court of Canada in Lidstone v McWilliams ( 1931) 3 DLR 455 SCC, noted at p. 456-7:

When it has been established that a will has been duly executed by a testator having testamentary capacity, and also established that it was read by, or read over to, the testator before execution, there arises ordinarily, in the absence of suspicious circumstances, a strong presumption that he knew and approved of its contents, but there is no inflexible rule on the subject. If, however, there are circumstances which arouse the suspicions of the Court — as, for example, if the will was prepared by a person who takes a benefit under it – the party propounding the will must remove the suspicion by proving that the testator knew and approved of the contents of the document, and it is only when this has been done that the onus of proving fraud or undue influence is thrown on the opponents of the will.

Mr. Justice Lambert referred to that passage and explained the meaning of the term “suspicious circumstances” in Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.):

It is important to recognize that the “suspicious circumstances” referred to in that passage, and in other authorities, are not circumstances that create a general miasma of suspicion that something unsavory may have occurred, but rather circumstances which create a specific and focused suspicion that the testator may not have known and approved of the contents of the will.

The doctrine of suspicious circumstances may arise in circumstances in which the background concerning the making of the will gives rise or should give rise to some suspicion. The doctrine is intended to ensure that there is no doubt that the making of the will was the free and voluntary act of the testator. In dealing with the will, the Supreme Court of Canada in Vout v. Hay 1995 125 D.L.R. (4th) stated that when dealing with the doctrine of suspicious circumstances and the onus of proof, the party alleging undue influence must prove it, and the question becomes which is more persuasive: the evidence calling into question the validity of the will (the suspicious circumstances) or the evidence supporting it.

It is crucial that a will practitioner look for and identify factors which might appear to be suspicious and to ensure that there is ample evidence to override those circumstances as having had an effect on the testator, prior to the execution of the will. Again there should be a detailed record made of the practitioner’s observations, and the notes preserved.


A short list of the innumerable circumstances in which might be suspicious is as follows:

(a) where a gift is made to a person with whom the testator had a close relationship but which was not known or recognized by the testator’s family;

(b) where a gift is made to a person who is in a position to influence the testator, such as a care-giver, or the worst example, the party preparing the will;

(c) where an apparently unwarranted, undeserving, or unpopular gift is made to a beneficiary who, in the minds of the those left behind, should not receive the gift;

(d) where a gift is made to a beneficiary to whom the testator has had no close relationship, such as a charity;

(e) where the division of assets among the children of the testator is substantially unequal, or a certain child or children are harshly treated;

(f) where the will substantially deviates from previous wills;

(g) where a gift is made to a person standing in a fiduciary relationship;

(h) where the beneficiary accompanies the testator on each trip to your office during the process to complete the will;

(i) where you receive the testator’s instructions from someone other than the testator;

(j) Where there has been a recent serious illness or hospitalization;

(k) where there is any question at all about testamentary capacity;

(l) where there are indications of substantial medications that are potentially mind altering, being used;

(m) where there is a hasty or unwise marriage or common-law relationship;

(n) where there is evidence of depression;

(o) where there is a language/cultural disability or illiteracy;

(p) if you have been asked to prepare a will for someone by which you are to inherit, then you should ensure that the testator receives independent legal advice, and preferably take no part whatsoever in the preparation of the will.

In circumstances where the testator has a will and substantial changes are being made, it would be prudent to enquire of the testator as to the provisions of the previous will and the reasons for the changes.

Similarly if a child or children are being disinherited, you should consider preparing a detailed memorandum pursuant to the provisions of the Wills Variation Act ( now S 60 WESA) and enclosing a copy of that signed memorandum with the original will. You should try and insure the accuracy of the information, so that the testator is not subsequently viewed by the court as being vindictive, as opposed to objective.

Assessing Mental Capacity: MMSE Mental Capacity Tests

Accessing Mental Capacity: MMSE Mental Capacity Tests

MMSE mental capacity tests, also known as Mini Folstein tests are frequently used by the medical profession as a screening test in assessing mental capacity.

Lawyers frequently attempt to tender the results of the MMSE results as evidence of lack of mental capacity.

The courts have determined that such tests are simply a screening test and are not determinative of capacity – they are merely an indicator that tells a doctor as to whether a full capacity test should be made.

This is particularly the case when the test is administered on a simple occasion as it is well-known that such scores can rise or fall over a period of time.
See Lazlo v Lawton 2013 BCSC 305.

Courts can therefore reach a conclusion regarding mental capacity that conflicts with the medical diagnosis or the outcome of on MMSE or other medical test.

In Lowery v . Falconer 2008 BCSC 516 the family doctor examined the testator shortly before she signed the will and concluded that she was competent. Several months later, the doctor performed, thenE and confirmed that she was capable of managing her own financial and legal affairs.

Despite these medical findings, the court concluded that the testator lacked capacity, and set aside the will.

In Shkuratoff v Shkuratoff 2007 BCSC 1061 the court expressed apprehension about reliance on the score results of the MMSE in the absence of a robust explanation of the role that it plays in making the legal determination of testamentary capacity.

The court looked to the circumstances surrounding the assessment to determine the reliability and wait to be attached to the medical evidence.

In British Columbia Public Guardian and Trustee v Egli 2003 BCSC 1716 the court reviewed the admissibility of expert evidence to support a finding of incompetence. In the course of that review, the court noted that courts of sometimes allowed expert evidence, but have been very careful about the weight to be attached to that evidence. She cited Lynch v . Lynch estate (1993) 138 AR 41 (QB) where the court allowed counsel to lead psychiatric evidence about whether the individual was suffering from Alzheimer’s disease at a particular point in time.

However, the court diminished the weight which could be attached to this evidence, noting that the circumstances of the assessments were not apparent from the record, the reasons for the doctor’s conclusions were unclear, and his qualifications were unknown. Further, the judge noted that the doctor was not cross-examined on his assessment.

In Egli , the court further commented that the opinion sought to be admitted for the purpose of proving the truth of the opinions are not straightforward or mechanical observation. The opinions are psychiatric in nature. They are steeped in the expert skills of a geriatric mental health worker. They are not of kin to observation, such as blue toes. The opinions about Mr. Egli’s global assessment of functioning, his scores in the various mini mental status exams, and the diagnoses of his cognitive functioning. Our subjective opinions, requiring review of information, interviews, and deliberation of the author of the opinions. The court had not heard any evidence concerning the qualifications of the individuals who made the diagnoses and cannot therefore assess the degree of reliability that should be ascribed to the opinions.

It is also to be noted that a mental capacity assessment must be done by a doctor, and the nurses not qualified. Cooper v . Cooper 2000 BCSC 1650 at paragraph 4

Can You Prove Mental Incapacity for a Will?

Can You Prove Mental Incapacity for a Will?

Nykoryak v Anderson 2017 BCSC 1800 is a decision that in many respects is indicative of how difficult it is to succeed in having a will set aside on the basis of lack of mental capacity.

The court found that the testator who is aged 93, when he executed his last will had sufficient mental capacity to do so, despite some underlying cognitive issues. The evidence of his doctor and the lawyer who drafted the will was accepted by the court in proving that he had testamentary capacity.

The court held that the law is clear that the issue to be decided is not whether the deceased suffered from cognitive impairment when the will was executed, but rather, whether, despite the cognitive impairment, the deceased was able to:

1) Understand the nature and effect of a will understand the extent of what was being bequeathed under the will;

2) remember the persons who might be expected to benefit under the will

3) understand the nature of the claims that may be made by a person who is excluded by the will;

4) understand the extent of what was being bequeathed under the will

The lawyer who took instructions for the will had filed an affidavit at a summary trial, hearing, setting out his discussions with the testator. It was clear that the testator could not of had the discussion he had with the lawyer, if he did not meet the foregoing criteria.

In addition, the testator’s long time physician had provided an opinion in the form of an expert report that although the testator had some underlying cognitive issues at the time he executed his will, including some short-term memory loss and occasional confusion, he was nevertheless probably aware of what he was doing at the time.


The Law

The test for testamentary capacity was commented upon in Bull Estate v. Bull 2015 BCSC 136 at paragraphs 114 – 117:

114- the test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist, despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his or her ability to manage other aspects of his/ her affairs is impaired.

115- simply having an imperfect or impaired memory does not in itself absent testamentary capacity unless it is so great as to leave no disposing memory. A disposing mind and memory is on able to comprehend of his own initiative and volition. The essential elements of the will making, property, objects, just claims to consideration, revoking of existing dispositions and the like. Moore v Drummond 2012 BCSC 1702 at 158

116- the testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his or her property of which he/ she is disposing Allart Estate v Allart 2014 BCSC 211 at para 30

117- Because testamentary capacity is a legal question, and not a medical question, a medical opinion, although valuable and relevant is not determinative of testamentary capacity Laszlo v. Lawton BCSC 305 at para 190

In the Ontario decision Birtzu v. McCron 2017 ONSC 1420 at para 40 the court stated:

40- the applicant notes that testamentary capacity is not the same thing is the capacity to manage one’s property and the capacity to confer a power of attorney. I agree. This does not mean the test is higher for testamentary capacity, rather, it is different. Should this point need illustration, none better can be found, then in the decision Palahnul v Palahahnuk Estate 2006 OJ 5304 were a will made by an 80-year-old testator had been found incapable of caring for her own person or her own property. The testator was cared for by a niece, under an agreement with the public Guardian and trustee, the court found:

Testator requirements for making a valid will:

The requirements for a testator to have a sound disposing mind in order to make a valid will include the following:

  • The testator must understand the nature and effect of a will
  • The testator must recollect the nature and extent of her property
  • The testator must understand the extent of what she is giving under the will
  • The testator must remember the person she might be expected to benefit under her will
  • The testator were applicable must understand the nature of the claims that may be made by a person she is excluding from the will.

Establishing a lack of testamentary capacity

Isolated memory or other cognitive deficits do not establish lack of testamentary capacity.

Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property was bequeathing, the manner of distributed and the objects of his or her bounty.

Care must be taken in reading the physicians clinical notes are in interpreting their diagnoses.

Diagnosing someone is having dementia does not necessarily mean the person is demented. Diagnosing someone is having Alzheimer’s dissolving the person lacks capacity, though it may foretell a loss of capacity. If the disease progresses, as expected. Delete from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning.

Mental Capacity is a Legal Test, Not Medical

Mental Capacity is a Legal Test, Not Medical

The test for testamentary  mental capacity is a legal test and not a medical test.

It is very common in testamentary capacity cases to have a conflict not only between the evidence of the medical practitioners, but also between the evidence of the medical experts, lay witnesses, and the lawyer who prepared and witnessed the will.

The decision of Laszlo v. Lawton 2013 BC SC 305, contains and improves the following statements of law relating to testamentary capacity:

Testamentary capacity is not a medical concept or diagnosis, it is a legal construct. Accordingly, scientific or medical evidence, while important and relevant, is neither essential nor conclusive in determining its presence or absence.

Indeed  the evidence of lay witnesses often figures prominently in the analysis. Where both categories of evidence are adduced, it is open to the court to accord greater weight to the lay evidence than to the medical evidence, or reject the medical evidence altogether . O’Neill, the. Brown Estate 1946 SCR 622.

Courts may therefore reach a conclusion regarding mental capacity the conflicts with the medical diagnosis or the outcome of a MMSE or other medical test.

A diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity. Royal trust Corporation of Canada, V. Ritchie 2007 SKCA 64 at paragraph 113.

Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will– Royal Trust company v. Rampone ( 1974) BCJ 612 BCSC.

The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances. Knox v. Trudeau 2001, 38 ETR (2d) 67.

The assessment is a highly individualized and fact specific inquiry. As most cases are unique on their facts, appellate courts will not overturn a finding as to capacity, unless the trial judge has made a palpable and overriding error. James v. Field 2001 BC CA 267 at paragraph 71.

The jurisprudence supports the view that the trial judge, engaged in determining whether a testator has testamentary capacity, is entitled to prefer the evidence of lay witnesses to the evidence of experts. James V. Field 2001, BCCA 267.

Predatory Marriage

Predatory Marriage

Probably every experienced estate litigation lawyer has had court actions involving a predatory spouse. The phenomenon is disturbing and increasingly common in our society as individuals both live longer and accumulate more wealth.

In simple terms, predatory spouses take advantage of elderly victims and assume control of their financial affairs and often culminate in a secret marriage. The consequences for the victim and their immediate family are traumatic and significant.

Predatory marriage refers to a marriage ceremony entered into for the singular purpose of exploitation, personal gain and profit. Love and personal commitment are simply not part of the equation. The relationship typically begins when a caregiver persuades a vulnerable person to marry. The victim is usually elderly, dependent, vulnerable and suffering from significant cognitive impairment.

The marriage ceremony is usually secretive and the victim is thereafter closeted away from their loved ones as the predator takes control and management of the victim’s financial affairs.

Historically, the courts took an overly simplistic approach to marriage in that they equated marriage to a simple contract requiring minimal mental capacity. In other words, “any idiot can get married”.

Ironically, perhaps, if the contract to enter marriage is so simple, then why does a significant percentage of the legal profession engage in full-time work trying to extricate the parties from the supposedly simple contract?

The Law

One of the early leading cases is from 1885. Durham v. Durham 10 P.D. 80 provided a quote that has been frequently adopted by Canadian courts: “the contract of marriage is a simple one, which does not require a high degree of intelligence to comprehend”.

It is only in recent years that the courts have taken a more realistic approach to the level of mental capacity required to enter into a valid marriage. The law may still be described as being in a state of flux, and the courts typically still view the capacity to marry as a lower threshold than the capacity to manage one’s affairs, make a will, or instruct counsel.

The leading case in British Columbia is Wolfman–Stotland v. Stotland 2011 BCCA 175, which set out the hierarchy of capacity required for various decisions, holding that:

  1. separation is the simplest act, requiring the lowest level of understanding;
  2. divorce, while still simple, requires a bit more understanding in that it requires the desire to remain separated and no longer be married;
  3. American courts have recognized that the mental capacity required for divorce is the same as that required for entering into marriage;
  4. financial matters require a higher level of understanding than marriage;
  5. the capacity to instruct counsel involves the ability to understand financial and legal issues, which puts it significantly higher on the competency hierarchy;
  6. the highest level of capacity is that required to make a will.

A lack of mental capacity to marry will render a marriage void ab initio (as if it had never occurred) per Ross-Scott v. Potvin 2014 BCSC 435.

The law presumes that an adult has capacity unless the contrary is established. The onus of proof for establishing lack of mental capacity to marry is on the person asserting the same.

3 Recent Cases Involving Predatory Spouses

1. Juzumas v. Baron 2012 ONSC 7220

This case involved a predatory marriage where the victim, Mr. Juzumas, was an 88-year-old vulnerable male who was mentally incompetent. The court set aside a wedding and a transfer of his property to the predator’s son on the basis of the doctrines of undue influence and unconscionability.

Ms. Baron, the predator spouse, was a 64-year-old widow who had been married previously 6 to 8 times and had a history of caring for older men with the expectation of receiving an inheritance through their estates. She befriended Mr. Juzumas and promised to live together and care for him. He married her and signed a will naming her as the executrix and sole beneficiary.

After the marriage ceremony Ms. Baron continued to live in a separate apartment with her 23-year-old son and only visited her purported husband for several hours a week. She became increasingly abusive controlling and domineering towards Mr. Juzumas.

Without her knowledge, Mr. Juzumas ultimately changed his will to leave Ms. Baron only a modest bequest of $10,000. When she found out she embarked on a campaign to ensure that she received Mr. Juzumas s’s home. Through the assistance of a lawyer, an agreement was drafted that transferred the property to Ms. Baron’s son and Mr. Juzumas was left with a life interest in his home.

At the time of the transfer, Mr. Juzumas was 91 years of age, vulnerable, in failing health and completely dependent on and dominated by his abusive spouse. He lived in constant fear of being abandoned to a nursing home, with which Ms. Walker continually threatened him.

He commenced a court action to set aside the transfer of the property and sought a divorce and dissolution of the marriage.

The court set aside the transfer of land on the basis of the doctrines of undue influence and unconscionability, both of which may be used “where a stronger party takes advantage of a weaker party in the course of inducing the weaker party’s consent to an agreement”.

The court found that there was actual undue influence by reason of the fact that Ms. Baron threatened an elderly dependent with abandonment to a care home.

The court also found presumptive undue influence by reason of the fact that she was a caregiver who had the ability or potential to dominate the will of the other, whether through manipulation, coercion, or outright but subtle abuse of power.

It was incumbent upon the wife to rebut the presumption of undue influence and demonstrate that the transaction was an exercise of independent free will, which she was completely unable to do.

The court also relied upon the doctrine of unconscionability which gives the court the jurisdiction to set aside an agreement resulting from an inequality of bargaining power. The onus is on the defendant to establish the fairness of the transaction.

2. Hunt v. Worrod 2017 ONSC 7397

The facts of this case are perhaps as egregious as they possibly may be with respect to predatory marriages.

As a result of a catastrophic head injury, the 50-year-old Mr. Hunt had been in a coma for 18 days and hospitalized for four months. The injury left him with what doctors described as a wasted, shrunken brain.

Three days after leaving hospital, Mr. Hunt was spirited away by the defendant Worrod, a former girlfriend, for a secret wedding that gave her legal rights to his future wealth and his landscaping business, home and expected $1 million personal injury settlement.

Mr. Hunt’s concerned children contacted the police, who located him in a motel just hours after the purported wedding took place. His sons had been made his legal guardians by court order.

Mr. Hunt never lived with his purported wife after the marriage. Before the accident he had had an on-again, off-again relationship with Ms. Worrod and had concluded their relationship with a separation agreement that resolved all of their property and legal obligations to each other. In fact, he had been required to contact the police to remove her from his residence when the relationship ended.

It was noted that Ms. Worrod was an extreme alcoholic who had hit Mr. Hunt when drunk and was generally unable to act and care responsibly for herself while intoxicated.

Evidence at trial from various medical experts was conclusive that Mr. Hunt was intellectually devastated with serious physical and cognitive issues that made him increasingly malleable and easily influenced through emotional stimulation, including sexual relations.

The medical evidence was consistent that Mr. Hunt suffered a classic case of frontal lobe syndrome that limited his ability to reason abstractly, problem solve, make decisions or consider alternatives, and that he lacked insight and self-awareness. His cognitive limitations severely limited his ability to understand the consequences of his behaviors and actions.

All of the various medical experts who testified made it clear that Mr. Hunt did not have the capacity to marry. As stated in Ross-Scott v. Potvin 2014 BCSC 435:

“A person is capable of entering into a marriage contract only if he or she has the capacity to understand the nature of the contract and duties and responsibilities it creates. The assessment of a person’s capacity to understand the nature of the marriage commitment is informed, in part, by an ability to manage themselves and their affairs. Delusional thinking or reduced cognitive abilities alone may not destroy an individual’s capacity to form an intention to marry as long as the person is capable of managing their own affairs.”

The court concluded that Mr. Hunt did not have the requisite capacity to marry as he did not understand the nature of the contract he was entering into and the responsibilities the contract created.

The marriage was declared void ab initio and Ms. Worrod was ordered to have no further contact with Mr. Hunt.

3. Devore-Thompson v Poulain 2017 BCSC 1289

The deceased, Donna Walker, suffered from Alzheimer’s disease and in September 2010 was declared by the court to be incapable of managing her financial and legal affairs because of her dementia. She had moved into a care facility in September 2010, where she remained until her death in late 2013 at age 74.

Ms. Walker had purportedly married the defendant Poulain in June 2010 but they never lived together, either before or after the marriage ceremony.

The overwhelming evidence of several lay witnesses, as well as a treating geriatric psychiatrist, was that Ms. Walker had lacked mental capacity to marry in 2010.

For example, one lay witness testified that Ms. Walker had told her that she did not know where she was married, who married her, or even why she married the defendant. Once again, the marriage was done in secret and there were no friends or family at the wedding service.

There was one photograph taken at the wedding ceremony which clearly indicated that Ms. Walker’s facial expression was vacant.

After her first marriage ended, Ms. Walker had always told those close to her that she never wished to marry again. She was very close to her family and friends but never expressed to a single witness that she was in love with the defendant, that she knew anything about him, that they had any kind of future together, or that she wanted to get married and spend the rest of her life with him.

The evidence of the treating geriatric psychiatrist was most significant, in that she testified as follows:

  1. Ms. Walker did not understand reality, absorb information or make decisions based on the correct facts, and that she had no insight or judgment.
  2. On learning of the purported marriage, the psychiatrist had made an urgent referral to the Public Guardian and Trustee stating that Ms. Walker was incapable of entering into a marriage relationship as she was moderately to severely demented and had significant impairment of executive function. She also noted that Ms. Walker was at significant risk for abuse as a vulnerable adult.
  3. Ms. Walker did not have a grip on reality but insisted that she was fully independent for self-care and household management, despite much evidence to the contrary.

The defendant testified that he had no concern about Ms. Walker’s mental capacity.

The court had no difficulty in finding the defendant to be a completely untruthful witness who was motivated by a desire for financial gain from Ms. Walker’s assets.

The court concluded that Ms. Walker’s mental capacity had diminished to such an extent that she could not have formed an intention to live with the defendant or to form a lifetime bond. At the time of the marriage she did not understand what it meant to live together with another person, and could not know even the most basic meaning of marriage or understand any of its implications, including who she was married to, in the sense of what kind of person he was, what their emotional attachment was, that they would be living together, and fundamentally how marriage would affect her life on a day-to-day basis in the future.

Accordingly, the court found that Ms. Walker did not have the capacity to marry the defendant and the marriage was declared void ab initio. Two wills done by Ms. Walker in 2007 and 2009 were also set aside by reason of her lack of capacity.


The advent of a rapidly aging population with significant wealth will certainly lead to a rise in the increasingly common phenomenon of predatory marriage.

The legal issue of mental capacity to enter into such a marriage will increasingly become more relevant and litigated.

The legal test for capacity to marry is in a state of flux. It will undoubtedly continue to evolve as more instances of predatory marriage are brought before the courts and they become more accustomed to recognizing such predatory behavior.

To some extent I believe it is a situation where the courts need to be more cognizant of the significant number of predators in our society who prey upon the infirm and vulnerable.

The concept that only a low level of mental capacity is required to enter into a marriage is an anachronism that needs to be corrected, given the complexity of current family law, particularly as it relates to property entitlement to the assets of one spouse.

At present, to succeed in having a purported predatory marriage set aside, it is necessary to prove on the balance of probabilities that the victim lacked mental capacity to understand the nature of the marital contract, which typically requires both the testimony of lay witnesses and medical evidence of lack of capacity.

The Juzumas v. Baron decision is significant in that the court also invoked the doctrines of undue influence and unconscionability in setting aside the purported marriage. Hopefully it will be followed by other court decisions as useful tools to remedy a wrong suffered in the context of a predatory marriage and financial abuse.

Litigation Guardian: Lawyers Can Assess Mental Capacity

Litigation Guardian: Lawyers Can Assess Mental Capacity

In Gengenbacher v. Smith, 2016 BCSC 1164, the court examined what is the test that a solicitor must satisfy to determine if the solicitor can represent an individual seeking to be a litigation guardian of an adult under a legal disability and determined that the court will leave the determination of mental capacity to the lawyer and the court will not enquire into the degree of the incapacity.

The Court Stated:

[11]        I will deal first with the application to substitute a litigation guardian, a Mr. Evens, on behalf of Mr. Gengenbacher. Mr. Evens has signed a consent stating that he is Mr. Gengenbachers brother, undertakes to be responsible for the costs of the proceeding, and has no interest in the proceeding adverse to that of Mr. Gengenbacher.

[12]        Counsel for Mr. Gengenbacher has prepared a certificate of fitness, in the terms required by Rule 20-2(8), certifying that Mr. Gengenbacher is a mentally incompetent person, and setting out the bases of that belief. Those bases include meetings and telephone conversations with Mr. Gengenbacher since 2014, and review of medical reports from a psychiatrist, a neurologist and Alberta government employees, all from between 2008 and 2010.

[13]        Counsel for the lawyer points to the age of the medical information on which the certificate is partly based, and is concerned that any order made with respect to appointing a litigation guardian not become either res judicata in any later proceedings between Mr. Gengenbacher and his former lawyer, or influence any findings of fact in any later proceedings. The concern is that the order might be taken as a finding of Mr. Gengenbacher’s capacity that might somehow be applied retrospectively.

[14]        In my view, the Rules with respect to conducting litigation through a litigation guardian clearly leave any assessment of capacity to counsel: the court does not inquire into capacity, nor does the court rule on capacity. It is enough that a lawyer, as an officer of the court, certify that a person is a mentally incompetent person, in the words of Rule 20-2(8).

[15]        If this were a fresh action, no order would be required. Sub-rule (2) provides that no action may be by or against a person under legal disability except by his or her litigation guardian. Person under legal disability is a necessarily broader term than mentally incompetent persona so as to permit infants to engage in litigation while minors. In E.M.E. v. D.A.W., 2003 BCSC 1878 (CanLII), the court held at para. 16 that persons under legal disability for the purposes of Rule 20-2 were infants or mentally incompetent persons, based on a reading of the Rule as a whole. I note that sub-rule (12) contemplates a litigant who attains majority during the litigation, and who is “then under no legal disability of assuming conduct of their litigation on filing an affidavit.

[16]        Sub-rule (10) contemplates court involvement in this question only if a litigant becomes a mentally incompetent person while a party to a proceeding, in which case the court must appoint a litigation guardian if no committee has been appointed or the litigant has not nominated a representative under the Representation Agreement Act, R.S.B.C. 1996, c. 405. E.M.E. v. D.A.W., does not require an inquiry into mental capacity in every case, as in there it was an opposing party seeking appointment of a litigation guardian for a self-represented litigant, with neither a lawyers certificate nor consent of a proposed litigation guardian