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 for a declaration that her aunt’s will was invalid due to lack of testamentary capacity. A secret late-in-life marriage and changes to her aunt’s will took place after her aunt had been diagnosed with dementia, and only shortly before she was moved into a long-term care facility and declared incapable of managing her financial and legal affairs. The court found that the marriage was void ab initio due to lack of capacity (see here for my discussion of “predatory marriage” and capacity to marry in BC) and determined that the aunt lacked testamentary capacity to make the will.
The legal test for testamentary capacity
The law of testamentary capacity has old roots. In Devore-Thompson v. Poulain, the court adopted the following modern restatement of the test for testamentary capacity (at para. 53):
The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property.
While a medical condition can affect testamentary capacity, capacity is a legal construct, not a medical diagnosis. Further, the effects of a medical condition on capacity can vary over time (at para. 54). If you would like to know more about the issue of fluctuating capacity, see here.
Presumption of testamentary capacity
I have previously discussed the legal framework for analyzing issues of testamentary capacity and undue influence, which are increasingly prevalent issues given the aging population and related rise in conditions such as dementia, Parkinson’s, and Alzheimer’s, which impact memory and cognition. The court in Devore-Thompson v. Poulain provided a helpful summary of the operation of the presumption of capacity:
 In the testamentary context, the existence of the presumption of capacity in any given case depends on the circumstances surrounding the will’s execution. The propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity. The propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the proper formalities after having been read over by or to a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity: see Vout v. Hay,  2 S.C.R. 876 at para. 26 [Vout].
 However, where suspicious circumstances are present, the presumption is spent and the propounder of the will reassumes the legal burden of proving knowledge and approval. If the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity: see Vout at para. 27.
Suspicious circumstances include those circumstances that tend to call into question the capacity or free will of a will-maker. These are not necessarily sinister, although they can be. Such circumstances could merely be evidence that a will-maker’s doctor deemed him or her to be no longer capable of managing his or her affairs and as suffering from dementia.
Facts in Devore-Thompson matter: Alzheimer’s diagnosis and cognitive decline
Donna Walker passed away on December 26, 2013 at age 74. She had no children, but during her lifetime she maintained a close relationship with her niece, Donna Devore-Thompson. In 2005 Ms. Walker was diagnosed with probable Alzheimer’s disease. Ms. Walker’s physical and mental decline was very evident to family members over the next few years. She became unable to bathe or groom herself, eat with cutlery, follow conversations, use a chair, or speak properly. Ms. Walker was unwilling to accept the implications of her diagnosis, so Ms. Devore-Thompson increasingly assisted Ms. Walker to live independently until that was no longer possible.
Execution of first will
Ms. Walker met Mr. Poulain in 2006, telling her relatives that they were friends. In early 2007 Ms. Walker’s driver’s license was revoked for safety reasons. On February 16, 2007, Ms. Walker executed a power of attorney, naming Ms. Devore-Thompson and a long-time friend as attorneys. The same day, she made a will appointing the friend as executor and Ms. Devore-Thompson as alternate (the “2007 Will”). In the 2007 Will, Ms. Walker divided the residue of her estate among her nephew, her cousin, and two nieces (one being Ms. Devore-Thompson). In May 2007 Ms. Walker appointed Ms. Devore-Thompson and her mother as her representatives for making health care and personal decisions.
Secret second will and marriage
Unbeknownst to those closest to Ms. Walker, on July 2, 2009 Mr. Poulain accompanied Ms. Walker to a meeting with a lawyer to prepare a new will, which disinherited Ms. Devore-Thompson and left Ms. Walker’s condo to Mr. Poulain (the “2009 Will”). Without telling family members, Ms. Walker and Mr. Poulain married in June 2010. In July 2010 Mr. Poulain took Ms. Walker to a different lawyer, attempting to get broader access to her bank account. A new power of attorney appointing Mr. Poulain was purportedly signed September 10, 2010. In that same month, Ms. Walker was moved into a long-term care facility and a certificate of incapability was issued pursuant to the Patients Property Act, R.S.B.C. 1996 c. 349, declaring Ms. Walker incapable of managing her financial and legal affairs because of mental infirmity arising from dementia.
Challenge to validity of marriage and will
Ms. Devore-Thompson challenged the validity of the marriage and the 2009 Will, theorizing that Mr. Poulain preyed on Ms. Walker’s vulnerabilities for financial gain. There was no dispute that Ms. Walker had Alzheimer’s disease; rather, the dispute had to do with the extent to which it affected her capacity at the material times. Given that Ms. Walker had died, the court had rely on the evidence of people who knew her and the medical evidence. (See here for my discussion of hearsay evidence to determine testamentary capacity). The witnesses gave credible accounts of Ms. Walker’s mental decline over the years subsequent to her diagnosis.
Mr. Poulain, on the other hand, gave inconsistent evidence about his relationship with Ms. Walker and tried to fabricate evidence to support his assertion that he was living with Ms. Walker. The evidence established that Mr. Poulain understated Ms. Walker’s illness, overstated his relationship with her and other facts designed to make it appear as though she was operating with free will and sound mind, and tried to create a false impression that Ms. Devore-Thompson was doing something untoward in relation to Ms. Walker (i.e., trying to steal from her and unfairly restricting her access to her own money). The court concluded that Mr. Poulain manipulated Ms. Walker by suggesting that she could not trust Ms. Devore-Thompson and that she was trying to steal from her, thereby taking advantage of Ms. Walker’s vulnerable mind and inserting himself in her life as her ally. The court concluded that the marriage was void ab initio due to lack of capacity.
2009 Will invalidated due to lack of testamentary capacity
The court also concluded Ms. Walker did not have testamentary capacity to make the 2009 Will. Ms. Walker’s dementia had advanced to such a degree by 2009 that she could neither understand the extent of her property nor who her natural beneficiaries would be. Since she did not have a basic understanding of her estate or her natural beneficiaries, she would necessarily be incapable of dividing her estate. The fact that Mr. Poulain’s handwriting on the 2007 Will was the basis for instructions was also suspicious when combined with the nature of the purported instructions and Ms. Walker’s known medical diagnosis. It was Ms. Devore-Thompson who was the key person who had been caring for Ms. Walker, and there was no good reason to disinherit her. Nor was there a good reason to remove her as back-up executor. There was no explanation as to how Mr. Poulain came to be given a gift in the 2009 Will. The lawyer who helped prepare the 2009 Will had no independent recollection of the events and the court did not have confidence that his standard practices were sufficient to detect whether Ms. Walker had testamentary capacity or capacity relating to the power of attorney.
2007 Will also invalidated due to lack of testamentary capacity
Given the court’s conclusion that the 2007 Will was invalid, Ms. Devore-Thompson sought an order propounding the 2007 Will, which had been prepared on Ms. Walker’s behalf by a notary public who testified at trial but had no memory of Ms. Walker or her interactions with her. The 2007 Will had been executed in February of 2007. Her doctor’s consult report of January 19, 2007 noted that Ms. Walker had impairment of judgment and insight and recommended that Ms. Walker designate a power of attorney for her finances. Ms. Walker had already been diagnosed with dementia of the Alzheimer’s type in 2005. Alzheimer’s disease is progressive with moments of clarity. While symptoms can wax and wane, there was an absence of evidence from family witnesses that Ms. Walker had periods of lucidity or normal functioning during this time. On balance of probabilities, the court found that Ms. Walker did not have the capacity to understand the extent of her estate, who the potential beneficiaries were, or how she might apportion the estate as between them. Ms. Walker did not have the capacity to make the 2007 Will, thus it too was invalid. Unfortunately for the plaintiff, the issue as to what happens next with respect to Ms. Walker’s estate was not before the court.
Take home point on testamentary capacity
Where there are suspicious circumstances relating to mental capacity, the propounder of the will has the legal burden of establishing testamentary capacity. For a will to be valid where such circumstances exist, the propounder of the will must establish on a balance of probabilities that the will-maker had the capacity to understand the extent of his or her estate, who the potential beneficiaries were, and how the estate may be apportioned as between them.