Category: Lack of Capacity
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Increased Risk of Predatory Marriage During the COVID-19 Pandemic?
Are BC residents at increased risk of falling victim to predatory marriage during the COVID-19 pandemic, particularly those who are elderly or suffering from cognitive impairment such as dementia? There is some cause for concern that the conditions brought about by the coronavirus pandemic may lead to an increased risk of predatory relationships, so in […]
Disclosure of Vancouver Estate Lawyer’s Privileged File Ordered
Property disputes and will challenges are often centred around determining the intention of a person who is now deceased or who has become incapacitated due to a medical condition such as dementia. For example, in Sales v. Fisher, 2019 BCSC 1050, litigation was commenced to determine the intent behind a transfer of title to property […]
Court Affirms Test for Testamentary Capacity in BC Will Challenge
In a 2017 BC will challenge, the court affirmed testamentary capacity is not the same thing as the capacity to manage one’s property or the capacity to confer a power of attorney, and as such, a will-maker may have sufficient mental capacity even if his or her ability to manage other aspects of his or […]
Testamentary Capacity: Challenging a Will Made by a Person with Dementia
Issues of testamentary capacity frequently arise when a new will is made under ostensibly suspicious circumstances: late in a will-maker’s life, while in the throes of dementia, ushering in changes to the estate plan to include new beneficiaries and disinherit others. In Devore-Thompson v. Poulain, 2017 BCSC 1289 the niece of a will-maker brought an application […]
Predatory Marriage in BC Set Aside Due to Incapacity
The landmark decision in Devore-Thompson v. Poulain, 2017 BCSC 1289 represents the first reported case where the Supreme Court of BC declared a marriage void due to lack of capacity. The marriage in that case was found to be what is referred to as a “predatory marriage” – when a man or a woman enters into […]
Dementia and Mental Capacity to Leave Estate to Caregiver
Quick answer: A dementia diagnosis does not mean a person cannot make a valid will. In British Columbia, testamentary capacity is judged by the Banks v. Goodfellow test and assessed at the time the will is made, not by a label. Capacity can fluctuate, and a person with dementia may have the understanding the law […]