Capacity To Make A Will: Medical Evidence Is Not Always The Last Word

By Pushor Mitchell LLP

In matters of mental capacity, the evidence of doctors is often conclusive. It is not often that the opinion of a lawyer about mental capacity trumps that of a doctor, and rightly so, since doctors applying scientific diagnostic criteria and experience have the expertise to properly answer questions about mental capacity. However, in some situations, a Court may prefer non-expert evidence of capacity to the extent it is focused on a particular issue, supported by outside evidence, and benefits from a particular legal test for mental capacity.

In Moore v. Drummond, handed down by the British Columbia Supreme Court in November of last year, this is exactly what the court did. The deceased, Ms. Drummond, had made a will very near the end of her life. She left everything to her neighbours, and nothing to her son.

The interesting fact in Moore is that a week before her lawyer came to her house to make the will, Ms. Drummond’s family doctor had, at the request of the Public Guardian and Trustee, given a report that said Ms. Drummond had dementia and was not capable to manage her own financial affairs. The doctor’s report was neither a traditional expert report, nor was it based on more than a couple of standard form tests. Given what the report said, the Public Guardian and Trustee briefly froze Ms. Drummond’s bank accounts and blocked her ability to sell real estate, but lifted these restrictions and closed their file on Ms. Drummond’s capacity after about a month.

The importance of this case is that it illuminates the difference between capacity to manage one’s affairs, and capacity to make a will. Moore also comments on the quality and purpose of medical opinion. Generally, to make a valid will, a person needs to have the mental capacity to understand the contents of her will and the effects of the disposition the will makes at the time the will is made.

Three main reasons stand out why the court says Ms. Drummond had capacity to make her will, despite the doctor’s opinion that Ms. Drummond had dementia.

  1. Before making her will, Ms. Drummond had expressed dislike about her son, to both her neighbours and her friends. She had also expressed a strong liking for her neighbours, and had visited with them often over many years.
  2. After making her will, Ms. Drummond accurately commented on the terms of her will, and was clear that she had chosen to disinherit her son. Changing her will was, apparently, not a passing fancy but a long-held desire.
  3. The capacity required to make a valid will is not the same as general capacity to manage one’s affairs and business. This is an important factor in Moore because, although the Court accepts that Ms. Drummond was “probably not capable of making day-to-day decisions,” she did have — and the evidence of the lawyer who made the will and the person who witnessed the will — the ability to make a valid will. This was because the lawyer was particularly focused on Ms. Drummond’s testamentary capacity, and particularly her recollection of the property she wished to dispose of, the persons who would get that property, and how it was to be distributed. It helped, too, that Ms. Drummond provided cogent and clear reasons for disinheriting her son.

Capacity to make a will can be a complex issue, and it is not always straightforward. As Moore shows, even evidence of some lack of mental capacity is not always enough to invalidate a will. If capacity to make a will is an issue you are dealing with, or suspect, give one of the wills and estate lawyers at Pushor Mitchell a call.

To find out more information, contact one of Pushor Mitchell LLP Wills & Estates Litigation Team:

Joni Metherell
Allan Elliott