Category: Lack of Capacity
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How to Prove Lack of Testamentary Capacity in BC
To prove a lack of testamentary capacity in British Columbia, you must show that the person who made the will did not fully understand what they were signing at the time the will was created. BC courts examine whether the will-maker understood the nature of the will, the extent of their assets, the people who […]
Contesting a Will Due to Dementia
In BC, a will is valid only if the will-maker had testamentary capacity when it was made. Dementia does not automatically void a will, but it can raise suspicion. Where suspicious circumstances exist, the person relying on the will must prove the will-maker knew and approved of it. With the aging population and rising incidence […]
Unsigned Will Given Effect Despite Fluctuating Mental State of Will-Maker
In this article we will discuss important points from Gibb Estate (Re), 2021 BCSC 2461 on mental capacity, validity of wills, and the court’s duty to give effect to a deceased’s intentions whenever possible. While in the hospital after suffering a heart attack, a BC man named John Gibb requested that his lawyer prepare a new […]
Family Dispute Leads to Contested Committeeship Application
When an adult can no longer manage their finances or personal care and a dispute arises over who should decide for them, a family member can apply to the Supreme Court of British Columbia under the Patients Property Act to be appointed committee. The court first needs two medical affidavits confirming incapability, then chooses the […]
Medical Examination Ordered After Alleged Victim of Elder Abuse Denies Incapacity
We are often contacted by concerned family members wanting to step in to help an elderly person whom they suspect is being abused. However, bringing litigation on the senior’s behalf can present a number of challenges. What happens if the elderly person denies any abuse and insists that they are capable of handling their affairs? […]
Dispute over Mother’s Mental Capacity Gives Rise to Vancouver Litigation
Family disputes can be significantly exacerbated by the heavy weight of dealing with an ailing parent. Family members can become mired in conflict over whether a loved one lacks capacity because of mental infirmity and if so, who should handle their personal, financial, and legal affairs. In a recent post, our Vancouver litigation team discussed […]
BC Committeeship: Court-Appointed Decision-Maker for Adult who Lacks Capacity
Quick answer: In British Columbia, a committee is a court-appointed substitute decision-maker for an adult who cannot manage their own affairs. The BC Supreme Court appoints a committee of estate (money and legal matters), a committee of the person (health and personal care), or both, under the Patients Property Act. A committee is a fiduciary […]
BC Family Law: What if a Spouse Lacks Capacity to Understand Consequences of Marriage?
In BC, marriage is a contract, so a person must have the mental capacity to understand its nature and consequences. If one party lacked that capacity, a court can annul the marriage, treating it as never valid. Setting a marriage aside for lack of capacity is difficult and carries a heavy burden. Marriage is a […]
Were Elderly Man’s Marriage and Will the Products of Undue Influence by his Caregiver?
In an earlier post, we discussed Ross-Scott v. Potvin, 2014 BCSC 435, a case in which the only living relatives of the deceased challenged what they viewed as a predatory marriage between their elderly uncle and his younger caregiver. The uncle, Mr. Groves, was 77 years old when he married his 56-year-old caregiver, Ms. Potvin, […]
BC Estate Litigation Challenges Elderly Man’s Capacity to Marry His Caregiver
In BC, marriage is a contract, so a person must have capacity to marry: they must freely choose it and understand its obligations. Capacity to marry is a relatively low threshold. In Ross-Scott v. Potvin, an elderly man with cognitive decline was still found capable of marrying his caregiver. Can an elderly, reclusive man suffering […]