A drafting solicitor’s assessment of a client’s testamentary capacity may be preferred over contrary evidence of the family doctor.  This was the finding in the recent Supreme Court of British Columbia decision in Moore v. Drummond.  At the age of 98, the testator made a new will naming her neighbours as the executors and sole beneficiaries of her estate.  In so doing, her only son was excluded.  As a result, her son decided to challenge the validity of the will.  (Note: the son had a separate proceeding under B.C.’s Wills Variation Act.)

The will was prepared by an experienced lawyer, who had spent more than 30 years in a firm founded by his father, and had said to have prepared “hundreds and hundreds of wills”.  The drafting solicitor was aware that the testator intended to disinherit her son, claiming that “alarm bells” were triggered, ensuring that more care and more time was spent in receiving and documenting instructions.  The drafting solicitor advised about a possible claim by the excluded son.  Overall, the drafting solicitor had no concerns about the testator’s capacity to make a will.

However, the drafting solicitor was unaware that one week before meeting with the testator, the Public Guardian and Trustee sought the opinion of a doctor who found that the testator had dementia, and that she was “incapable of making decisions regarding financial or legal affairs”.

In determining the proper test to apply in determining capacity, the trial judge noted amongst other cases, Banks v. Goodfellow (1870) 5 QB 549, and the more recent formulation in the Court of Appeal decision of Re Schwartz [1970] 2 O.R. 61.  According to Laskin J.A., the elements of testamentary capacity are as follows:

“…The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property…”.

Faced with the competing evidence of lawyer and doctor, the trial judge held that, on the balance of probabilities, the testator had testamentary capacity when she made her will.  The testator knew the nature and extent of her property, although not being able to accurately recall the current balance in her accounts, and was able to articulate reasons for disinheriting her son, although not accurately remembering the instances her son came to visit.

Whereas the drafting solicitor was focused on the testator’s competence in relation to a specific transaction or decision, the doctor’s opinion suffered since she was not asked to address the issue of testamentary capacity, but instead was, “…a general one that commented in the abstract on [the testator’s] ability to manage her affairs”.

Noah Weisberg