Can family members argue that an elderly relative with dementia lacked the mental capacity to change his will to make his younger female caregiver the only beneficiary?
In Elder Estate v. Bradshaw, 2015 BCSC 1266, the court considered that question.
Mr. Elder, who was 80 when he died in 2011, never married and had no children. His original will, prepared in 1987, left his estate to his sister, and if she died before him, to her three sons (Mr. Elder’s nephews) in equal shares. In 2006, Kate O’Brien, became Mr. Elder’s housekeeper. He had several health conditions, and over time, Ms. O’Brien gradually became his caregiver. Ms. O’Brien was 25 years younger than Mr. Elder.
In 2008, Mr. Elder was diagnosed with dementia. He received treatment and was monitored by a Geriatric Assessment Team from that time on. His mental status remained relatively stable in the years until his death. In April 2011 Mr. Elder prepared a new will that left his entire estate to Ms. O’Brien if she survived him and, if not, to his nephews. Mr. Elder died suddenly in July 2011. The nephews, who had not seen their uncle in over 15 years, were suspicious of the circumstances which resulted in them being disinherited in favour of the younger housekeeper/caregiver. They challenged the validity of the new will prepared in 2011.
The court agreed that the diagnosis of dementia raised suspicions regarding Mr. Elder’s mental capacity to prepare the new will (known as “testamentary capacity” in estate litigation). However, after examining all of the circumstances, the court was satisfied that Mr. Elder understood the extent of the property he was disposing of by will and was capable of making financial decisions. The court was also satisfied that Ms. O’Brien did not pressure or influence Mr. Elder in any way in relation to the change in his will.
Dementia may be a red flag, as may be the decision to leave one’s estate to someone who is not next of kin. However, the issue of mental capacity (known as “testamentary capacity” in estate litigation) ultimately depends on a consideration of all of the facts and the circumstances surrounding the preparation of a will.
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