It is helpful to get evidence from medical professionals before the court in disputes about the capacity of a deceased person to make a will. Although the test for capacity to make a will are legal tests (I have written about them here), medical evidence is certainly useful. Yet, it can be a challenge obtaining a medical opinion concerning capacity after someone has died. In some cases, the lawyer who drew the will asked a doctor to assess the testator before the will was signed. But, in many cases, no one examined the testator for the purpose of determining capacity.
A recent decision of the Supreme Court of British Columbia illustrates how a party to case about testamentary capacity may use expert medical evidence, even from a psychiatrist who never examined the testator. The case is Woodward v. Grant, 2007 BCSC 1192.
The plaintiffs challenged Mr. Joe Roberts will dated October 30, 2002. Mr. Roberts had made an earlier will in which he had left most of his estate to one of the plaintiffs, Marilyn Woodward. Although Ms. Woodward was still a beneficiary under the 2002 will, she received a smaller share than she would have if the earlier will were Mr. Roberts’ last will. She sought an order from the court declaring that the 2002 will was invalid on the grounds that Mr. Roberts did not have capacity when he made the will.
There was evidence that Mr. Roberts had some memory problems and confusion at around the time he made the 2002 will.
The defendants provided evidence in support of their position that Mr. Roberts had capacity from Dr. Les Sheldon, a geriatric psychiatrist. Dr. Sheldon had never examined Mr. Roberts. He reviewed Mr. Roberts’s clinical records made by Dr. Roberts’ doctors. Dr. Sheldon expressed the opinion that although Mr. Roberts suffered from some executive dysfunction, Mr. Roberts did not suffer from moderate or severe dementia, or anything that would impair his abilities to make a valid will.
The court admitted the clinical records into evidence on the basis that they are business records. They are admissible for the observations recorded and for the fact that doctors made certain diagnoses, but not as proof that the diagnoses are correct.
The plaintiffs objected to Dr. Sheldon’s evidence. But Madam Justice Gray held that his evidence was admissible. Dr. Sheldon’s evidence was relevant. His evidence assisted the court in understanding the technical facts in the clinical records, and the significance of observations recorded in the records, including test results.
Madam Justice Gray found that Mr. Roberts did have capacity to make the 2002 will. She considered, in addition to the medical evidence, the evidence of the lawyer who took the will instructions, as well as other witnesses in arriving at her decision.