A recent ruling from the Ontario Court of Appeal (OCA) suggests that great care must be taken to ensure that a client has the mental capacity to make or change a will. This is especially the case when evidence of cognitive impairment is murky or undocumented, says Paul Trudelle, a partner with Hull & Hull LLP, a law firm in Toronto that focuses on wills and estate-related matters.

The OCA ruling, handed down in December and which upheld a 2016 Ontario Superior Court of Justice decision, illustrates the challenges that can arise when estate issues erupt while a client is experiencing mental impairment. The OCA decision suggests that changes to an estate should be accompanied by the assessments of independent professionals such as financial advisors and lawyers.

In the OCA case, Ed Stekar, the next-door neighbour of Jerrald McNamara, an elderly man who was admitted to hospital with hallucinations and paranoia a few months before his death in 2012, failed to show there was no doubt that a new will, which benefited Stekar and was made while McNamara was in and out of hospital, was valid.

“In many cases in which people have early-onset or low-level dementia, they’re able to converse wisely; they know what day it is; they’re able to recount memories,” says Trudelle, who represented Thomas Wilcox, beneficiary of a 1999 will that Stekar challenged.

“But that [lucidity] doesn’t mean [people in early dementia] have the capacity to enter into certain transactions or a will,” Trudelle adds. “So, you have to go beyond mere cordialities when you are talking to a person who is elderly or making substantial decisions to make sure that they have the capacity to understand what they’re doing and you are able to show that they have the capacity; they didn’t just say they wanted to do [something. An advisor or lawyer must be able to say], ‘They gave me reasons why. I asked about the reasons and dug down a bit deeper, and they had a rational basis for that decision’.”

Situations similar to that in this case could arise for elderly clients who lack family and close friends. McNamara had a history of diabetes, depression, and drug and alcohol addictions. His only major asset was a three-storey home in Toronto’s west end, which he rented out to several tenants while he lived in the basement.

McNamara’s small circle of friends and acquaintances included Wilcox, whom McNamara had known for 40 years, as well as neighbours and others who would gather in McNamara’s garage, where he ran a business repairing cars. In March 2012, he began a six-week hospital stay during which he was assessed with delusions and paranoia, including hearing voices.

When McNamara returned home in April, an associate’s wife became his caregiver, and some of his friends renovated his home to make it more comfortable. In early May, McNamara asked Stekar to purchase a will kit, indicating that he wished to leave his entire estate to Stekar. That will was never executed.

A few weeks later, McNamara again indicated he wanted to make a new will, gathered together a group of friends (not including Wilcox) and executed a new will leaving his estate to a friend who had directed the renovation of his house, Stekar and the caregiver.

Then, McNamara re-entered hospital in June, showing signs of confusion. He died that month at age 72. The new will, tucked into a bible, was not found until after a Certificate of Appointment of Estate Trustee with a Will was issued under the 1999 will.

Both the trial and appeal decisions noted that people who challenge an existing will have the burden of proof. In addition, if there are “suspicious circumstances” surrounding the execution of a new will, the usual presumption that the testator has the capacity to make the new will ceases to apply and the will challengers must show, on a balance of probabilities, that the testator had knowledge of and approved of the new will. Challengers to a will also must show that the testator had sufficient mental capacity to understand the changes fully.

Suspicious circumstances can make that task daunting. In this case, they included: the radical nature of the changes to the original will, in which Wilcox was cut out completely; the opinion of medical experts that McNamara’s condition would have made him very vulnerable to suggestion; the absence of independent evidence regarding the new instructions McNamara gave; his mixed messages to friends about changes to the beneficiaries; and a caregiver who was with him for less than a month but who would have received a substantial interest in the estate.

“On this evidence, there can be no sustainable suggestion that the deceased’s testamentary capacity was free from doubt at the time of the execution of the 2012 will,” states the OCA’s judgment, which also awarded Wilcox $100,000 in costs.

When advising clients on estate matters, Trudelle notes, you must accumulate evidence that will assist in verifying capacity and ensure there is no undue influence at work. Using the services of a lawyer during this process is advisable, he adds, as this is likely to be far less costly than litigation down the road.

“[Lawyers] do more than just draft a will and put your intentions down on paper,” he says. “Lawyers also create a body of evidence to support the will that’s made.”

Trudelle also recommends keeping detailed notes about the circumstances of a change to a will and the relevant discussions.

Although a medical assessment on capacity normally isn’t required, he adds, cases such as this one “scream out” for one.