The elusive concept of capacity
Fortunately, most of us are able to function normally. We can look after ourselves, drive a car, manage our banking and so on. Therefore, in any sense, most of us “have capacity” to make decisions, manage ourselves and our finances.
As we age, however, even if we are lucky enough to avoid an illness such as dementia, we probably all (at different rates) begin to lose our capacity.
There is no given age when it can happen (there is such an illness as “early onset dementia”) and it may start to happen as a result of an accident or, say, a stroke.
In my opinion, the older a person becomes, generally the harder it is to ascertain whether they have capacity to understand things and make decisions. We may function well today and not very well tomorrow. So the concept of “capacity” is a volatile, uncertain one.
Whether a person has capacity is a legal test, not a medical one (though medical evidence is important in the determination). It is really important to accept and understand that a person who may make a decision or take a step that seems, say, unusual, should not be judged too quickly as not having “capacity”. A person with capacity is allowed to make “bad” decisions!
Last week, reasons for judgement were released in the case Sommer v. British Columbia (Public Guardian and Trustee), about an individual who made a Will (the last of many) days before she died.
There was considerable controversy over whether she had capacity, and the Public Guardian & Trustee (PGT) sought to prove the Will to have it admitted to Probate, so that the Estate could be in a position to distribute.
The opposition was formidable.
The deceased was born in 1919 and moved to Canada just before 1960. She was married and had an adopted daughter. Both her husband and daughter predeceased her.
The daughter had four children of her own, two of whom (sons) had ongoing but seemingly volatile relationships with the deceased. One of the grandsons lived with the deceased and looked after her and her house.
He was a registered owner on title for a time as well, but his interest eventually transferred back to the deceased. He expected to inherit the deceased’s residence given all he did for her.
Over the years, the deceased made a number of Wills where the two grandsons’ bequests changed. In a Will made in 2010, that grandson was bequeathed the entire Estate. Then came the 2012 Will, made on June 23, in which the grandson was disinherited in favour of the other grandson.
The deceased died nine days later.
The Court first discussed the law in this area, stating that the party seeking to have a Will approved (here, the PGT, who was the named Executor under the Will) must prove the deceased had Testamentary capacity, that the deceased knew and approved the contents of the Will and that the statutory formalities (that the Will was properly signed) were met.
The law presumes capacity, and knowledge and approval, at the outset but that presumption can be challenged where the opposition can prove that there were “suspicious circumstances.”
The medical evidence was not overwhelming. The two doctors involved seemed to generally believe the deceased had Testamentary capacity, but she did have some cognitive deficiencies.
The other grandson (who had gone from sole beneficiary to being disinherited under the last two Wills) tried to show that the deceased did not know or approve of the contents when she made that June 2012 Will (which was done 8 days after she suffered a fall). In that June Will, there were several cash gifts, which the grandson tried to show were irrational.
The Court received other evidence to the effect that it was not believable that the grandson was disinherited while gifts were given to organizations the deceased had virtually no affiliation with (including a church).
The Court held that the June 2012 Will (which was made with a Lawyer) was properly signed. The deceased appeared to understand it. But, the Court did feel that there were suspicious circumstances. That required the PGT to prove capacity, knowledge and approval.
The Court felt, on the evidence presented, that the deceased did have capacity and knowledge and did approve the contents of her 2012 Will. The Lawyer who prepared the Will met with the deceased three separate times before she signed it.
The Court added that, while the deceased probably had mild dementia, she still had the necessary capacity to change her Will.
To me, one of the critical comments the Court made was this: “Right or wrong, the Testatrix did not feel that the Plaintiff was treating her fairly or contributing sufficiently to the house. She had those views for some time and even if unfair, they were not irrational.”
The Will was accepted into Probate.
There is abundant case authority saying, in effect, that if a person has Testamentary capacity, they are allowed to make “bad decisions.”
Thus, I will suggest that a person in British Columbia has complete Testamentary freedom. They may choose to bequeath their Estate to anyone they wish.
If a person understands what they want to achieve in their Will, and the effect of the clauses they put in their Will, bequests can be of any type, to any person or organization and in any size.
There are opportunities to challenge the Will, whether by way of a Wills variation claim or by a claim of undue influence, suspicious circumstances or other common law remedy. But do not underestimate the significance of having Testamentary capacity.
This column ran in the Richmond News on October 30, 2015.