Case Comment – Christensen v. Bootsman
Re: Challenges to a Will based on mental capacity and undue influence
Summary of Key Points
Estate litigation in Alberta frequently involves challenges to the Will.
The issue of whether or not the maker of the Will (i.e. the "testator") had the mental capacity to understand the nature and effect of the Will is often raised within a Will challenge. That issue is sometimes also paired with an allegation of undue influence of the testator by another person (often a beneficiary of the new Will).
Often, the question arises when the testator made a new Will with new gifts or decisions about the property, to replace an older Will. Sometimes the new Will is made near to the time of death and/or when the testator is under medical treatment (including being administered prescription drugs).
In the Christensen case, the Court considers the types of medical and lay witness evidence that is relevant to answering the question of whether the testator had mental capacity, and whether she was unduly influenced in her estate planning.
The Court concludes that, although the evidence of medical practitioners specialising in mental health is useful and relevant if it is specific to the relevant timeframe, the evidence from a general practitioner is equally or more useful if it assists the Court in determining the questions in the case. Formal capacity assessments are very useful, if conducted. But, it is not fatal to defending these allegations not to have one available. Lay evidence is also corroborative of, or considered together with, the medical evidence.
We recommend that legal practitioners include taking careful notes of meetings during both at the time of receiving instructions, as well as at the time the documents are executed. Capacity assessments may form part of that process, assuming no conclusively negative capacity concerns yet exist for the testator.
The Christensen Case
On February 13, 2014, the Alberta Court of Queen's Bench released a decision, Christensen v. Bootsman (2014 ABQB 94), which addressed the allegation by three of the four children of the Deceased who challenged the Will, that the Deceased testator had insufficient metal capacity to make a new Will. Those three children also alleged that their sibling – the executrix – influenced the Deceased in making this new Will.
The Court examined two issues: 1) Did the Deceased have sufficient mental capacity to make the new Will?; and, 2) Was the Deceased unduly influenced by the other sibling (executrix) in making the new Will?
In the Christensen case, the testatrix, Joan Christensen of Edmonton, Alberta, made a new holograph Will (hand-written and signed in the testatrix's own hand-writing), dated June 28, 2010 ("June 2010 Will"). Joan had 4 independent adult children in the Edmonton area (three daughters and a son). The eldest daughter was Joan's executrix.
The major asset in this Estate was the family home in Edmonton, Alberta. Joan received it by way of survivorship after her ex-husband died in March, 2010 (they remained joint tenants on title despite their divorce in 1975).
Between 1975 and 2008, Joan lived mostly independently. In January, 2008, at 77 years old, Joan was admitted into a hospital for a physical assessment. In May, 2008, she was discharged into the Capital Care Norwood centre. In June of 2008, she moved into a a permanent care residence called Citadel Mews Care Centre, where she had constant care. She lived in Citadel Mews until she died in October of 2010.
Joan made her first Will in 1976, at the age of 46, after her divorce from her ex-husband. The first Will was what the Court terms a "formal Will" (non-holograph Will prepared by a lawyer). The first Will appointed the eldest daughter, Yvonne, as executrix. Joan's 1976 Will divided her estate evenly between her four children. Yvonne applied for, and was granted, Probate of the Will in December of 2011.
After Yvonne's lawyer advised the siblings of the Probate process, one of the siblings, Sandra, brought forward other testamentary documents that apparently also existed. The Court directed Sandra to file an Application with the Court to review and consider the new documents and the circumstances in which they were made, including a new 2010 Will.
On June 28, 2010, Joan had made a new holograph Will. The June 2010 Will drastically changed how Joan's estate would be divided. It gave the majority of her assets to her second-eldest daughter, Sandra, who had taken on most of the responsibility for Joan's care in the latter years. Joan relied on Sandra for her care and decision making and, of the four children, Sandra had the most available time to assist Joan. The June 2010 Will did not appoint an executor, so the Court directed that Sandra apply to prove it formally.
Yvonne and her other two siblings, Roxanne and Lance, challenged the June 2010 Will, on the basis that Joan lacked sufficient mental capacity and also alleged undue influence by Sandra. They alleged that the circumstances of creating the June 2010 Will were suspicious. The medical evidence became crucially important.
The Medical Evidence
The Court reviewed several distinctions in the types of medical evidence available in cases of alleged mental incapacity in estate litigation matters. There are several different types of medical assessments and observations that are relevant in estate litigation and Will challenges. Some are more important or helpful to the Court than others.
The Court reviewed the evidence given by the three doctors who performed Joan's physical needs assessment in January, 2008, and a fourth doctor, whom was her general physician from 2008 until her death in October, 2010.
The first doctor who conducted the physical needs assessment for could testify only that when he saw Joan in 2008, she was having difficulty living alone, and assessed her for rehabilitation and her living requirements. His Admissions Report included a complete history and treatment plan. It involved an hour long interview with Joan and her family (in this case, Sandra), and a review of the medical records. He did not do any testing. He identified dementia, with anxiety, confusion, and visual hallucinations and fluctuations (mixed etiology – Alzheimer's and vascular) as a concern, among other medical problems.
The Admissions Report was not a "capacity assessment." The evidence was that for such an assessment to occur, there has to be a "trigger" (e.g. refusal of long term care, or financial or legal issues). The process of doing a capacity assessment first requires reviewing that with the patient specifically, and giving the patient an opportunity to decide whether or not to consent. A capacity assessment is conducted in respect of "decision-making" abilities: living arrangement, accommodation, or financial.
There was no "trigger" present for this doctor to do a capacity assessment (Joan was not refusing care). The Court found that this Assessment Report cannot be "extrapolated" into a capacity assessment for any time period for the purposes of the litigation, despite its references to "dementia" and similar concerns. This doctor could not offer an opinion on her capacity either then or later. However, he observed her at the hospital and noticed significant cognitive impairment in early 2008. Yet, he could not address what followed, because he notes that her condition could have improved (although he noted that was unlikely).
The second doctor who testified was the neuropsychologist from the hospital at which Joan was assessed in February, 2008. He prepared a report, based on testing done to determine Joan's cognitive abilities at the time. He met with Joan, reviewed her medical history charts, and tested her over two days. He interviewed Sandra by phone.
The report commented on Joan's reasoning ability and attention (strong), and on managing money, home and transportation, and health and safety (weaknesses – moderately to severely impaired for these functions). The recommendations were in respect of "daily living," and included that she receive assistance with daily living and complex decisions including money, and recommended she write down or have others write down those matters for her. It recommended that her psychological functioning be monitored.
He did not suggest she should not do banking or make decisions on her own. He did not test her ability to write or communicate in writing. He did not do a "capacity assessment," and the testing and report could not be used to determine capacity, but rather was to determine her "cognitive state" at that time. It was not for medical/legal purposes. The doctor noted that, while Joan met the criteria for dementia, she was not given the diagnosis at that time. This doctor did not see Joan again after February, 2008.
The third doctor to testify was the psychiatrist (working as a geriatric psychologist) who met Joan in April, 2008, as a result of the first doctor's request for a psychiatric opinion. She reviewed Joan's file, including the previous testing, and the neuropsychologist's report. She met with Joan twice (but not any of the family). She conducted a further test – the mini-mental status inventory and executive function tests – on which Joan scored 29/30 (mental status) and 22/50 (executive function). Scores below 20 in executive function are normal, and scores in the 20s indicate a problem. Joan's score indicated that she was slow, vague, and needed prompting.
This doctor did not believe Joan fit a dementia diagnosis, but showed signs of "dimentiform illness," which required increased assistance. She noted that Joan had cognitive issues and physical issues, but no clear dementia. She observed poor judgment and problems with decision making. This doctor noted that the hallucinations earlier on the file were reported in 1998 and were unrelated to the assessment conducted in 2008.
Likewise, this doctor also did not perform a "capacity assessment," nor could her opinion be admitted as one. This doctor does do capacity assessments, but did not do one for Joan. She notes that when she does capacity assessments, she expressly discusses with the patient the long term impact such an assessment can have on their life.
The final doctor testified as Joan's general physician, in relation to Joan's care from June, 2008 until her death in October, 2010. He took a special interest in palliative care for seniors. He saw her every two weeks, with visits of 10 minutes per attendance. His observations on cognition or mental health arose from input from nurses and family members, and his observations. His evidence was similar on the issue of when a capacity assessment is conducted, and he confirmed that he did not do a formal capacity assessment.
He recalled Joan as a strong and determined person, with strong views of what she wanted and whom could easily express herself. She had reasonable explanations for her actions. She had a dignified approach to life and her situation, and always knew what she was saying and doing.
He gave evidence that she was diagnosed with age-related dementia (2008 assessments) but that he did not know how those doctors reached their conclusions. He gave no weight to those previous diagnoses. He did not see evidence of dementia in Joan in his visits with her. He even discussed that diagnosis with Joan, she understood him, and acknowledged it. But, he saw her as having no loss of cognition (during the time in which he saw her) or impaired judgment. She had good comprehension and conversation skills. While she may have had dementia, in his view it did not impair her cognitive abilities. Three to four out of ten times he saw her, Joan had family present. Sandra would communicate health care issues if Sandra was present. The family wanted the dementia diagnosis removed.
This doctor signed a typed Will in July, 2010 and a Power of Attorney (as a witness). That Will was not propounded as a governing document in the case. This physician had no concerns about witnessing the documents. Joan had mentioned a Will to him previously, and she knew what she was asking. His practice was to discuss such documents with the patient to be sure they understood what document they were signing, and why. He also made sure the patient was not on medication or being controlled by a third party. He was not concerned with Joan signing these documents before him.
The general physician testified that Joan had capacity to make a Will until August of 2010. Had he noticed any changes, he would have recorded them. On his regular visits, he did not see anything to lead him to question her cognitive ability. He recalled that closer to her death in October of 2010, her cognition did diminish but it was satisfactory until late August, 2010. After that date, her health declined generally. He believed that Joan was capable of making the actual June 2010 Will at issue in the case.
The Lay Evidence (Observations of Non-Medical Witnesses)
The Court also considered the evidence given by the lay witnesses who observed Joan prior to her death.
Sandra resided with Joan throughout her life. Sandra was not regularly employed, and had more free time to care for Joan, after Sandra's own relationship with her husband failed in 2001 and she moved in with Joan in 2005. Between 2004-07, Sandra spend most of her RRSP savings, and her mother invited her to live with her. Sandra did so until Joan was placed in care in 2008, at a doctor's urging. She always had a good relationship with Joan.
In 2008, Joan gave the sister, Roxanne, all her important documents to look after while she was in the care facility, including the 1976 formal Will. Sandra continued to be the primary family support for Joan and regularly attended the care facility to visit and attend to Joan's needs. The other siblings also visited, on different days of the week. Joan liked to do her own banking. Sandra would bring her the bills that arrived at the house, and Joan would withdraw money to pay the bills. From 2004-2010, Sandra did not know her mother's financial status; Joan did all her own banking.
Sandra was not present when Joan prepared several documents while in the care facility, nor does she recall the date she first saw them. Sandra bought Joan a briefcase to contain the documents but Joan did not feel comfortable keeping them in her room. Sandra decided to keep the briefcase in the trunk of her car. All such documents signed by Joan were placed in that location, including the June 2010 Will at issue. Sandra did not assist Joan alone in preparing the transfer of title to the home to Joan after Joan's ex-husband died. Roxanne, Joan, and Sandra attended together (even though Joan often told Sandra she wanted her to have the house when she died). Sandra also never invoked a Power of Attorney that she only later learned appointed her immediately, because Joan preferred to do her own banking.
In June, 2010, Joan gave Sandra the June 2010 holograph Will at issue. Sandra did not see Joan write it. She simply filed it with the other documents in the briefcase, and believed it was a draft only. Joan later asked Sandra to type a formal Will, which is the document she signed with the general physician in July, 2010. Sandra typed that Will after taking Joan' s instructions on what to include in it. The terms of this Will were substantially the same as the June 2010 Will, but this version was invalid because it was not properly executed. Joan instructed Sandra not to discuss the Will with her siblings, because the other children would not listen to her and believed that they were after her about the house and wanting to sell it. On the day before Joan died, Sandra retained a lawyer and gave the lawyer all the documents that her mother had signed. Roxanne asked Sandra at the wake, if there were any other Wills besides the 1976 Will, and Sandra responded that there were not, in an attempt to avoid conflict (the opposite appears to have occurred).
The Claimant Siblings: Roxanne, Lance, and Yvonne
The other siblings confirmed that they were much less involved in their mother's care. They were away on business and lived independent lives. Some only visited or called once or twice a month. They concurred that Sandra was there more often than them to care for Joan. Roxanne in particular testified that Joan trusted Sandra and that she believed Sandra would do a good job of assisting Joan, and that it was good to have Sandra there to help Joan live independently as long as possible. Sandra handed Roxanne the 1976 Will when Roxanne came to assist in Joan's move into the care facility, and Sandra told her to keep the document safe. Roxanne stated that she was silent when the "family" members raised the dementia diagnosis, while Sandra vocally opposed it.
Lance testified that his mother had a long history of mental illness and related medications. He sheltered his own children from Joan's influence on them because he did not want them to experience what he had growing up. He believed that Joan could not handle 'legal matters'. He generally supported the 2008 assessments, but was not involved in the process. He also had no role in placing her in care. He was pleased with the facility and staff. He was involved only as a support to Joan, and did not attend physicians' appointments. He had a poor relationship with Sandra and did not communicate with her. Joan stopped recognising Lance's children while she was in the care home and mistook their names. Lance believed that the June 2010 Will used different language than Joan did, and he found it suspicious.
Yvonne's testimony was similar in respect of Joan's mental illness while Yvonne was growing up. She was unaware of any dementia except in the latter years. Yvonne trusted Roxanne and Sandra's care of Joan and the choice of care facility. She never spoke with Joan about her finances or Wills. Yvonne specifically recalls Joan asking her during a visit to the care home, what to do with the house and whether to give it to Sandra. Yvonne told Joan to do what she though was fair.
Similarly, Yvonne observed Joan becoming slow and lethargic in July of 2010. Yvonne applied for probate of the 1976 Will because it was the only one she believed Joan had. She saw the June 2010 Will at a lawyer's office in September, 2011. She also challenges the June 2010 Will, on similar grounds. She had no specific grounds to say the Will was not what Joan wanted, nor that she actually saw Sandra influence Joan to do something other than what Joan wanted to do.
Roxanne testified that, in 2010, Joan showed signs of decline in that she used to do puzzles but stopped doing them near the end of the summer of 2010. Joan had some concentration issues, and sometimes did not realise when she needed to change her clothes, or clean her teeth. However, Roxanne never had any problems having open conversations with Joan. The other siblings could also freely see Joan. No sibling testified that they were being 'blocked' from seeing Joan. Roxanne testified that Joan was lethargic and wheelchair bound in June or July of 2010.
Roxanne believed that Joan wanted to leave the house to all the children equally, while apparently it was given to Sandra in the June 2010 Will. Yet, the siblings were not involved in the banking, nor did Joan discuss the 1976 Will with them either. In this family, they were raised to stay out of each other's financial affairs.
After Joan died, Sandra told Roxanne about the lawyer who had all the documents. Roxanne called the lawyer, who confirmed the existence of the June, 2010 holograph Will.
Each of the siblings took issue with the changes of disposition (gifts) made in the June 2010 Will, because they unequally favoured Sandra to the others (including that it gave the house to her), when they believed Joan would have intended to treat the children equally. They took issue with Joan's ability to make it, including her ability to write the whole document (attention span/stamina were lacking), and its secrecy (none of them knew of its existence, except Sandra who believed it was a draft). They each allege the Sandra influenced Joan on what to write in the June 2010 Will.
The evidence of influence was essentially allegations without any specific fact to support those allegations.
Key Legal Principles
The Court determined that there are several key legal principles that apply to challenges to a Will based on mental capacity, and several other key principles for challenges based on undue influence. The Court applied the Vout v. Hay test for assessing testamentary capacity and undue influence allegations.
The key starting principle is that the propounder (person advancing the document as valid) has the onus to prove the formal requirements were met (due execution, knowledge and approval of the contents, and testamentary capacity). Upon proof of due execution and reading by the testator, it is initially presumed that the testator knew and approved of the contents and had mental capacity to make it. The person challenging the Will must show suspicious circumstances, supported with sufficient evidence, to rebut those presumptions. If the challenger raises suspicious circumstances, then the propounder must prove all three facts (due execution, knowledge and approval, and mental capacity).
If undue influence or fraud are alleged to raise suspicious circumstances, then the person challenging the Will must prove those facts throughout.
The Alberta law on mental capacity is set out in Banks v. Goodfellow. Banks requires that the testator:
- Understood the nature of the document and its effects.
- Understood the extent of his/her property being disposed of.
- Was able to understand and perceive the claims to which he/she ought to give effect and that no disorder of the mind poisoned his/her affections or prevented the exercise of his/her mental faculties to change the disposition.
The Court held that a person may have testamentary capacity, despite confusion or cognitive impairment. Medical evidence is of assistance, but is not necessarily by itself conclusive (although most cases rely upon it as a source of key evidence). Presence of a mental illness, even "senile dementia," does not necessarily preclude testamentary capacity. It is a practical question, and does not depend upon "scientific or medical definition." It is a matter of fact for the judge to determine.
It is always strongly presumed that the testator had capacity to make a Will (and that any temporary lapse in capacity can be later regained). The evidence must be convincing to rebut that presumption. The legal test is not applied so strictly as to defeat the Deceased's wishes. There is leeway for certain debilitation or memory 'enfeeblement', as long as there is enough capacity left to discern discreetly, and to judge all of those things and circumstances that a testator should consider in his or her fair and just testament.
The times at which the Court assesses legal testamentary capacity is at the time of both: 1) giving instructions; and, 2) executing the relevant document.
The Court cites the Vout case principle that undue influence must be positively proven by the person alleging influence rebutting the presumption of capacity and knowledge and approval of the contents of the Will. This is done by proving an "influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator's mind, but which really does not express his [or her] mind, but something else which he [or she] did not really mean."
The Alberta Courts have expressed the test slightly differently, as requiring the party challenging a Will to show that "the testator was fully aware of what she was doing, but had her independence overborne by the influence of another person such that there was no voluntary approval of the Will. The test for undue influence is effectively coercion...into doing something that she did not want to do."
The onus of proof is quite high and very specific to that very document alleged to be influenced. It is not sufficient to show 'influence' over a person generally.
In Christensen, the Court found that the June 2010 Will was the last valid Will made by Joan Christensen. The Court rejected the allegations that Joan lacked sufficient mental capacity to make a Will, or that Joan was influenced impermissibly by Sandra.
The June 2010 Will was signed by Joan, and met the technical due execution requirements. The siblings raised suspicious circumstances, to require Sandra to prove capacity. The siblings had the onus to prove undue influence.
Suspicious Circumstances Allegation
The Court rejected the allegations of suspicious circumstances. It found that Sandra storing the Will in the trunk of her car in a briefcase had a logical explanation (Joan wanted it safely outside her room and the trunk was locked). The Will's contents were also not suspicious. The unequal distribution was considered in the context of how Sandra was the primary care person for Joan other than the care home staff and medical doctors, which had changed since the 1976 Will was made. The relationship between with Sandra and Joan had solidified. None of the other children complained of this relationship either. Sandra provided "real value" to her mother. It was found to be natural that Joan would make special provision for Sandra, especially considering Sandra's personal circumstances (divorce and unemployment, then caring for Joan). Joan also specifically raised with Yvonne the gift of the house to Sandra, so it was not unforeseen either when Sandra received it.
The Court also rejected the allegations that Sandra's relationship with Joan was itself suspicious or that there was a concern of 'secrecy' of the June 2010 Will (because Joan was a private person and did not discuss such matters with others). There was no undue influence (i.e. "coercion") by Sandra. The Court found that the siblings did not prove that the June 2010 Will "does not contain [Joan's] true intentions." The siblings could not point to any one specific event or incident to support this allegation either. None had ever seen Sandra do anything inappropriate. While it was clear that Sandra had "influence" over her mother, that was not enough to show "coercion" in the legal sense.
Mental Capacity Issue
On the issue of capacity specifically, the Court found the lay witness evidence on Joan's capacity to concentrate and write to be unhelpful to the issue. No witness testified that Joan was, in fact, unable to write in June of 2010. Rather, the evidence is that she prepared a number of hand-written and dated documents, each within a month of the June 2010 holograph Will.
For the medical evidence, the siblings point to the first three doctors' assessment reports, and claim that they support a finding that Joan lacked capacity. The Court found that those assessment reports made just prior to Joan entering the care facility must be "totally disregarded," because it was dated information, and it was not relevant to assessing her testamentary capacity. Each of those doctors acknowledged that their reports were not relevant to determining her decision making capacity either at the time they were written or at a later date. Rather, they were made to determine the appropriate treatment, and proper placement in the community.
The Court found that the evidence of general practitioner who continued to see Joan right up to her death must be given the most weight. The Court found that he provided the most relevant medical evidence in relation to Joan's capacity at the time she made the holograph Will. This evidence was admitted as that of a "general practitioner," but not an expert. The fact that the general practitioner saw Joan regularly, and attended to her overall health in the 2.5 year period before her death was given significant weight, because it was the period in which she made the Will. Even though this doctor was not trained in capacity assessments for legal purposes, his opinion was preferred because he had independent first-hand evidence of Joan's condition at the correct time period. He was satisfied that she had capacity to make such decisions, and specifically to understand and sign the Wills.
The children's lay evidence essentially supported the medical evidence.
The Court found that Joan had the requisite mental capacity to make the June 2010 Will. No undue influence was established. Therefore, the June 2010 Will was admitted to probate.
The 'Take Away' for Practitioners
This case confirms the importance of medical evidence to both proving mental incapacity or to defending allegations of mental incapacity. Solicitors preparing estate planning documents may wish to obtain a capacity assessment prior to the testator executing the documents, assuming that no negative capacity concerns yet exist. Executors will be wise to consult with the Deceased's physician(s) and medical staff at the earliest opportunity after a challenge to the Will is made on the basis of mental capacity or undue influence.
As a secondary recommendation, it is important to take careful notes of the chronology of facts as the unfold, including the details of the treating physician(s). This applies to taking instructions, meetings, executing the testamentary documents, follow-ups, and of course the circumstances of receiving instructions for probate and of the probate process itself. In this case, those facts also proved decisive.
Thank you for reading. We hope that this review was helpful to you.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.