Law Society's Elder Law Seminar
Ian just returned from an excellent seminar put on by the Law Society of Upper Canada. It was called "Elder Law - Your Growing Clientele". Like most of this group's continuing legal education, it was supported by a high calibre cast of speakers and a good range of topics.
The seminar started off with a dynamic roundtable discussion concerning criminal and civil remedies when dealing with Powers of Attorneys. There were 2 members of the Greater Toronto police force present and Susan Woodley, of Woodley Law, represented the civil bar.
Dr. Ken Shulman and Ian spoke about inter vivos gifting and the presence of undue influence in such circumstances. Ian prepared a paper on the subject and, in part, reviewed the current circumstances relating to inter vivos gifts, or gifts during one's lifetime, from the perspective of the ever-present cases regarding joint accounts. Ian pointed out that the onus or burden of proof lies on the recipient of an inter vivos gift. Furthermore, he noted that the Courts will look at all of the surrounding circumstances when trying to determine if a gift is indeed truly received by someone, or whether they are merely holding the account in trust for the estate. One of the most intriguing speakers was Dr. Ken Shulman from Sunnybrook Hospital. He provided the medical/psychiatric analysis underlying the whole issue of undue influence.
Once Ian has had a chance to review the papers that were presented more carefully he will be reporting further on the conference.
As for the Podcast summaries, Episode 6 of Hull on Estates was a comprehensive review of cases and, as such, we are going to continue our review of the testamentary capacity law that was dealt with during this Podcast.
We began the discussion with the concept of delusions. Suzana noted that a delusion is meant as something more than a mistaken belief in a state of facts which do not exist, or which a reasonable man would not believe to be true. The decision of Boughton v. Knight (1873), L. R. 3, P. & D. 64 at pg. 68 is authority for the proposition that a delusion involves a belief in something that no man in his sense could believe. In fact, the decision in Re Watts (1933), 6 M. P. R. 47 at pg. 52-53 (N. B. C. A.) stands for the proposition that:
"It has been laid down that a mistaken belief as to a matter of fact or illogical conclusions therefrom is not necessarily an insane delusion, neither is any belief or prejudice however mistaken which has some basis for it ... So long as there is some evidence of or basis for the belief it is not and never can be an insane delusion."
Suzana discussed the dangers that arise when considering the question of delusions and she noted that, in the "grey zone", we must make proper inquiries of the individual's mental capacity and mental state.
Ian noted a Supreme Court of Canada Decision (O'Neil v. Royal Trust Co., [1946] S.C.R. 622), which held that the mere fact that the testator had been adjudged incapable of managing his affairs did not establish lack of testamentary capacity per se. On the other hand, an individual may be sane in the ordinary sense and yet not have a disposing memory (Lamb v. Brown (1923), 54 O.L.R. 443).
Suzana noted that the facts are, of course, of particular importance in determining the question of testamentary capacity and, as a result, have a direct bearing on the disposition of the estate and one's ability to recall and comprehend. Suzana went on to quote the learned words from the Supreme Court of Canada in Leger v. Poirier [1944] S.C.R. 152 at 161-162 as follows:
"There is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying comprehension beyond a limited range of familiar and suggested topics. A "disposing mind and memory" is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like...
Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree as appreciation as a whole."
More on capacity tomorrow ...
All the best, Suzana and Ian. --------
