Many types of estate litigation cases such as testamentary capacity, undue influence, committee applications and others rely on medical evidence, which is typically initially obtained from medical records that are
I have a number of blogs on mental capacity and most of them relate to “dementia” as the cause of the cognitive deficits that had lead to the estate litigation.
Henderson v Myler 2021 BCSC 1649 discussed inter alia mental capacity to make a will. Determining whether a testator has the mental aka testamentary capacity to make a will
In certain circumstances, a demented person found to be incapable under the Patients Property act may still have sufficient mental capacity to properly instruct a lawyer to prepare a will.
The age of elderly will-makers has never been an element of the test for testamentary capacity. In the leading case of Banks v Goodfellow (1870) LR 5QB 549 on testamentary
Friesen Estate (1985) Man QB 88 sets out the law relating to testamentary capacity in Manitoba, including the heavy onus on a lawyer , notary or will drafter who takes
One of the components of testamentary capacity and a valid will is that the testator must have knowledge and approval of the contents of the will before it is signed.
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
In a testamentary capacity case James v Field 2001 BCCA 267 recognized that the observation of a lay witness may carry as much weight as that of a doctor or
The modern restatement of the test for testamentary capacity means that the will maker is sufficiently clear in his/her understanding and memory to know, on his/her own, and in a