Let’s Talk About Court Ordered Capacity Assessments

by: , August 10, 2018

Can one’s capacity be assessed against their will? The recent Ontario Superior Court of Justice decision in Erlich v. Erlich, 2018 ONSC 2911 sets out a useful overview for how and under what circumstances a court may order a person to undergo a capacity assessment, be they willing or otherwise. Background Robert Erlich (“Robert”) is…read more

40oz. to Testamentary Freedom

by: , July 13, 2018

Is the fact that one is a chronic alcoholic enough to deprive them of their testamentary freedom? In Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario explored this issue when it was tasked with determining the validity of two wills that were executed by a known drunkard. Background Jacques Henry Dujardin…read more

Ere the Son Rises

by: , June 1, 2018

Ere the Son Rises What is an adult child to do when his or her parent is no longer capable of managing their property? They may, for one, consider applying to the Ontario Superior Court of Justice for the appointment of a Guardian of Property. In Ballinger v. Marshall, 2018 ONSC 3020 (CanLII), a devoted…read more

I Hate to be a Suspicious Aloysius on You – but Did the Deceased Have Testamentary Capacity?

by: , January 26, 2018

A recent Ontario Court of Appeal decision (Stekar v. Wilcox[1]) reinforces what is required to prove well-established grounds for challenging a will: suspicious circumstance and testamentary capacity. Background Jerald P. McNamara (the “Deceased”) died on June 18, 2012. His friend of over 40 years, Thomas, stood to inherit his entire estate under the terms of…read more

Home? Or a Retirement Home? The Court Must Decide

by: , April 19, 2016

An elderly woman suffers from dementia. Her two children are both her attorneys for property and personal care. Both have diametrically opposed plans for where she would live. In Walter Burnat v Mary Bosworth et al, 2016 ONSC 2607 (S.C.J.) the court had to decide whether the mother – Olga – would continue to live…read more

Nova Scotia repeals “habitual drunkard” law

by: , May 29, 2015

Until earlier this month, Nova Scotia had a statute on the books called the Inebriates’ Guardianship Act, R.S.N.S. 1989, c. 227 which allowed for the court to appoint a guardian over a “habitual drunkard”. While Nova Scotia has other statutes which allow the Court to appoint a guardian for a person found to be incapable,…read more

Can Late-Stage Alzheimer’s Patients Change Their Minds About Their Care?

by: , May 8, 2015

The British Columbia Court of Appeal recently released its decision in Bentley v. Maplewood Seniors Care Society. The closely watched case involved a late-stage Alzheimer’s patient who was supposedly “consenting” to being fed. Her “consent” consisted of opening her mouth when a spoon or glass was placed on her lower lip. The case raises difficult…read more