Canada: Dementia And Alzheimer's Not Necessarily A Barrier To Drafting A Valid Will

The recent decision from the Saskatchewan Court of Klassen v. Wiers Estate is illustrative of the fact-specific analysis a court will undertake when determining whether a testator (the person making a will) had the required capacity to execute (sign) a will. While this case dealt with legislation and estate procedure in the Province of Saskatchewan, the principles will generally apply elsewhere in common-law Canada, including Alberta.

This decision involved a dispute between the Applicant -the deceased's daughter - and the deceased's daughter-in-law. The Applicant challenged the validity of her father's (the "Testator") will on the basis that he lacked testamentary capacity at the time that he executed the will in August of 2015, and that his daughter-in-law unduly influenced the Testator into executing the will. The Testator was a long-time farmer, farming five quarters of land with his son (the husband of the daughter-in-law), until the son's death in 1995. The Testator only had two children, the son who had passed away, and the Applicant. At the time of the Testator's death, he only retained one quarter section of land, having disposed of two quarter sections to his son and daughter-in-law in 1989, and then the home quarter to his daughter-in-law in 2005. At this time, the Testator moved off the farm and into town. Another quarter section was sold to the Testator's granddaughter shortly before his passing in 2016. 

The Testator's will left any remaining farm land in his possession to his daughter-in-law, and if this property had been sold, 50% of the residue of the estate. The remaining 50% of the estate was to go to the Applicant. If the Testator still retained farmland (which would pass to his daughter-in-law), 100% of the Testator's assets were to go to the Applicant. The Testator's long-time financial advisor confirmed that it was always the Testator's wish that his son (or his son's family) retain all of the farm land. Further, his son and daughter-in-law purchased a policy of insurance on the Testator's life, whereby the proceeds would go to the Applicant, to equalize the inheritance. This issue was not fully explained in the decision, but for some reason the Applicant refused to accept the proceeds of the policy of insurance when it became due. The executor, a long-time friend of the Testator, also confirmed that it was the Testator's long time wish to pass on his farm land to his son and daughter-in-law.

The Applicant raised a number of issues regarding the Testator's mental capacity, including the fact that he had been diagnosed with Alzheimer's in 2009. The Court accepted this as fact, and also accepted that the Testator was suffering from some form of dementia. Despite this, the Testator's own doctors noted that he was "able to function at a very good level". While the Testator was dealing with some memory loss issues, he was still able to function on a day-to-day basis, consult with his advisors, and generally care for himself. For example, only two days prior to the Testator's death, he performed in a Christmas concert at a senior's home in both a choir and a quartet.

The Applicant had to show that there was a "genuine issue for trial" to force this matter to a full hearing. The Court was not satisfied that there was sufficient evidence that the Testator lacked the requisite capacity to properly execute a will.

Finally the Applicant's contention that the daughter-in-law had unduly influenced the Testator was dismissed out of hand. There were allegations of conversations and misconduct which were not dealt with in any detail, and we can only suspect these arguments were either secondary, or not particularly compelling. 

This decision illustrates that when determining whether a testator had the requisite capacity to execute a will, the mere fact that the testator may have been suffering from dementia or Alzheimer's is not conclusive proof of lack of capacity. Dementia and Alzheimer's have varying stages of disability, and one may still be able to understand and properly appreciate the requirements of preparing a will. However, there will come a point in the progression of Alzheimer's and dementia where capacity will be lost. Medical evidence and evidence from those who are close to the testator can become extremely important in determining whether the testator's Alzheimer's or dementia has progressed to the point that the testator lacked capacity.

Interestingly in this case, the Testator's financial advisor prepared the will, and there was no discussion as to whether this financial advisor was also a lawyer. In any event, the Court was satisfied that the instructions provided to the financial advisor were consistent with the Testator's wishes. The facts of this case suggest that it was on the cusp of requiring a trial, but in the end, the Court was satisfied that the extra time and expense were not necessary, and that the Testator's intentions and capacity were adequately established so as to foreclose any future litigation.

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.

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19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

21 Nov 2018, Webinar, Calgary, Canada

Changes to the Employment Standards Code this year increased the number of unpaid leaves to which employees are entitled for the purpose of allowing them to deal with family related issues.

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