Fuller (Estate) v. Fuller

I wrote an earlier post on the legal tests for capacity to make a will as set out in the English case of Banks v. Goodfellow, (1870), L.R. 5 Q.B. 549. Like so many other areas of law, the legal tests are easy to state, but often difficult to apply. One of the most interesting capacity cases I have ever read from British Columbia, or from anywhere else for that matter, is the case of Fuller (Estate) v. Fuller, 2002 BCSC 1571, appeal dismissed 2004 BCCA 218.

In 1995, Stanley Fuller was a widower, with three children. He was a devout member of the Philadelphia Church of God. He had owned farm and logging property in Northern British Columbia, which he sold that year for $2.5 million, realizing about $1.8 million after capital gains tax.

In the same year he sold his property, one of his children asked for a loan to finance the purchase of a new house. Instead of making a loan, he decided to give each of his children $200,000. He also made a gift of $260,000 to the Church.

He had made a will in 1993 leaving twenty percent of his estate to the Church and eighty percent to be divided equally among his three children. He had also made a power of attorney, appointing his daughter Rosemary as his attorney.

In March of 1997, Mr. Fuller attended an experienced wills and estates lawyer’s office. He instructed his lawyer, Ms. Ongman, to draft a new will for him, leaving his children only $1000 each, with the rest going to the Church. He told his lawyer that his daughter Rosemary had railroaded him into making the earlier will, and that he had given the children their inheritance when he gave them $200,000 each.

Based on her interview with Mr. Fuller, Ms. Ongman was of the view that he had the capacity to change his will, but because he was leaving so little to his children, out of caution she asked him if he would see a doctor for an assessment of his mental capacity.
Mr. Fuller was examined by a medical doctor who opined that he had the capacity to make a will, and wrote a note to the lawyer to that effect. Mr. Fuller then signed his will.

It is apparent from his reasons for judgment that the trial judge, Mr. Justice Rogers, of the Supreme Court of British Columbia, found that Mr. Fuller’s lawyer had taken appropriate steps to determine that Mr. Fuller had capacity to make a will. Mr. Justice Rogers also found that, “that Mr. Fuller appreciated the nature of the document he was signing, he knew the extent of his estate and he understood who had potential claims upon that that estate.”

From what I have written so far—and I have omitted some important facts—it would appear that the will should be upheld. Yet, Mr. Justice Rogers found that Mr. Fuller did not have capacity to make a will, and declared the 1997 will invalid. The British Columbia Court of Appeal upheld his decision.

I will tell you why.

There was evidence from his daughter Rosemary and from Mr. Fuller’s friends that he had delusions in 1997 and even earlier. The delusions included things such as delusions that a neighbor was trying to steal from him, and a tall woman was trying to molest him.

Although it is possible for someone to suffer delusions and still have capacity to make a will, in this case Mr. Fuller exhibited delusions about his children. For example, he told a friend that he was changing his will because his family was out to rob him. He also told his son that his daughter Rosemary’s husband was out to rob him.

The key medical evidence in this case came from Dr. Schokking, a geriatric specialist, who examined Mr. Fuller in September 1998, about a year and a half after Mr. Fuller made his will. Mr. Justice Rogers summarized Dr. Schokking’s evidence as follows:

He concluded that Mr. Fuller had an atypical case of Alzheimer's disease. The case was atypical because Mr. Fuller's Alzheimer's had produced profound and disabling delusions in his mind, but his social function was largely preserved. Dr. Schokking said that most usually patients who are as severely affected by Alzheimer's as Mr. Fuller was also have significant impairment of their social skills. Mr. Fuller did not.

The court accepted Dr. Schokking’s opinion that Mr. Fuller was probably suffering from delusions brought on by Alzheimer’s disease when he made the will. Dr. Schokking provided an interesting explanation of the delusions. Mr. Justice Rogers wrote,

[29] Dr. Schokking’s opinion was helpful in this case not so much for his diagnosis of dementia in September 1998, but rather his interpolation of the progress of the disease during the several preceding years…. He said, and I accept, that Alzheimer's is a progressive disease that affects the cognitive function of the patient's mind. The disease is not usually diagnosed until it has already been present for 3 to 5 years. Dr. Schokking says that when he saw Mr. Fuller in September 1998 he was in the moderate stage of the disease. Given the gradual progression of the disease, Dr. Schokking said that it is much more likely than not that Mr. Fuller's mind was affected by Alzheimer's in the Spring of 1997, and probably earlier than that.

[30] Dr Schokking went on to describe the usual effect of Alzheimer's on patients. The diagnostic criteria of Alzheimer's is the presence of short term memory loss together with loss of one other memory domain, such as orientation to person, place or time. Because the patient experiences loss of memory, as the disease progresses he begins to experience episodes of unexplained phenomena. He might, for example, be unable to find his car keys one day, and suddenly discover them in plain sight on the kitchen table the next. Two explanations are available to a patient in these circumstances. The patient may recognize his own failure and blame himself; or the patient may not admit the failure of his memory and look to some other agent to explain the missing keys. The latter response is the most common, and it is the genesis of the paranoid thinking that Alzheimer's patients develop as their disease progresses. The patient often blames persons close to him and with whom he has most frequent contact for what are to him unexplained events. That is paranoid thinking. The patient also develops delusions to explain why his family and friends would cruelly hide his car keys from him for days at a time. Delusions are simply stories that fill in motivation for what the patient perceives to be the nefarious actions of his family and friends. Delusions can also develop to explain other cognitive malfunctions of the patient's failing mind.

Dr Schokking’s evidence dovetailed with the evidence of family and friends of Mr. Fuller’s delusions that pre-dated the will. Mr. Justice Rogers found that “Mr. Fuller's 1997 will was made at a time when his mind was affected by disease such that he was influenced by delusions which poisoned his affections for his children.”

You can read the trial decision here, and Madam Justice Prowse's reasons for judgment in the Court of Appeal upholding Mr. Justice Rogers’ decision here.

There are a few things that I find especially interesting about this case. First, it appears that the lawyer who drafted the will took appropriate steps to assess Mr. Fuller’s capacity, and she did get a medical assessment. Despite this, the court did not uphold the will. Secondly, the key medical evidence came from someone who examined Mr. Fuller for the first time quite a long time after the will was made. Yet Dr Schokking’s evidence was compelling, because it explained Mr. Fuller’s behaviour as observed by other witnesses in 1997 and earlier. I doubt that the outcome would have been the same without the evidence of these other witnesses. Thirdly, Mr. Fuller was able to function well socially despite his diminished capacity. This case demonstrates how difficult it can sometimes be to recognize when someone does not have the capacity to make a will.