June 20, 2022

Whether a deceased person had testamentary capacity to execute his or her will is a question often raised in estate litigation and is the subject of many will challenges. A contemporaneous assessment of a testator’s capacity is not always conducted, and sometimes, even if such an assessment was done, it may be flawed or unreliable for a variety of reasons.

As a result, litigants often obtain a retrospective capacity assessment to assist in determining what the deceased person’s capacity would have been at the material time in question. Generally, the test for capacity is as follows:

1.  The testator understands the nature of making a will and its effects;

2.  The testator understands the extent of the property being disposed of;

3.  The testator understands the nature of the act and its effects;

4.  The testator appreciates the claims to which he or she ought to give effect; and

5.  There is no “disorder of the mind that 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.”

A retrospective capacity assessor is typically a psychiatrist who will review the deceased’s medical records, which are usually obtained via a court order and on consent of the parties (although sometimes, the production of medical records can be contested and the matter must be resolved on a motion). The review includes, in part, an analysis of the testator’s medical history and hospital stays, medications that may impact testamentary capacity, as well as anecdotal information that can be gleaned from the records’ reference to family and friends who may have visited or looked after the deceased person. The analysis would then determine whether, from the perspective of the retrospective capacity assessor, the testator would have met the test set out above and had the requisite capacity to execute his or her will.

Such retrospective capacity assessments can be extremely helpful in gaining insight into the testator’s mental state in or around the time of the execution of his or her will.

The retrospective capacity assessors are indeed experts retained on behalf of a party, and thus it is important to be mindful of the Ontario Rules of Civil Procedure which govern expert duties, their reports, and the like.