November 17, 2014

In daBalinhard, the Saskatchewan Court found that a history of alcoholism, short term memory loss and unusual behavior was not enough to sustain a will challenge.

After a forty-year marriage, the testator, John, and his wife, Shirley, separated on August 16, 2011.  Two months after their separation, John executed a new will on October 20, 2011.  In his new will, John excluded Shirley and left all his property to his two surviving brothers and his nieces and nephews from a brother who has predeceased him.  John died nine months later.

Upon discovering she was excluded from the will, Shirley challenged John’s capacity at the time his new will was executed.   Her evidence was that John was an alcoholic who had been suffering from short-term memory loss and violent behavior in the last year of his life.  This strange behavior was one of the reasons they separated.  The propounders of the will, John’s brother and his nephew, agreed that John was an alcoholic but that he did not have any mental capacity issues. In fact, he had a keen understanding of his property holdings and assets and knew exactly what he was doing when he made his new will.

Both parties filed numerous affidavits with the court in support of their respective positions.  In Saskatchewan, will challenges are heard as a two-stage process.  Stage one involves a chambers appointment to determine if there is enough evidence to move on to a trial, with stage two being the trial itself. At stage one, the court does not weigh the evidence of the two sides but rather determines if the will challenger has adduced some evidence, which if accepted at trial, would show a lack of testamentary capacity and if the propounder of the will can respond to that evidence in a way that affirms testamentary capacity.

The court found that Shirley failed to show how John’s alcoholism and short-term memory loss affected his capacity to execute a new will.  There was no evidence that John was drunk when he made his will, no evidence on how his alcoholism eroded his cognitive capacity and no evidence that a hospital stay one month after the will was executed equated to a lack of capacity to make a will.

The court held that snippets of medical notes does not provide for an overall review of John’s cognitive capacity.  Shirley failed to meet the threshold stage of providing evidence that, if accepted at trial, would negate testamentary capacity.

The court noted that Shirley only saw John once following their separation. John’s brother, friend, and the drafting solicitor observed John on key dates surrounding the execution of the will.  The drafting solicitor had a long-standing relationship with John, met with the John a number of times leading up to and following the execution of the will, and provided evidence of the level of detail John was able to provide about his assets.

Moreover, the court found that John’s will made sense as he had earlier learned that Shirley withdrew large sums of money from a joint bank account and he made arrangements to have their property valued to comply with a division of family property assets.

This case is a reminder of the importance of considering the overall medical condition of a testator when challenging capacity.   The court will likely not consider a solitary note or reference to delirium (or dementia or Alzheimers) on its own as compelling evidence to warrant a will challenge.

Thanks for reading.