Sunday, August 10, 2008

Delusions and the Capacity to Make a Will

Many people who suffer from schizophrenia meet the legal criteria in British Columbia to make a will and do other estate planning. Delusions do not necessarily imply incapacity to make a will. But if the delusions influence the estate plan, then the person suffering delusions may not have the mental capacity to make a will or do other estate planning.

Stella Sirgianidis suffered from schizophrenia for many years, since the 1970s. She was treated in 1975 in hospital. From then to 2004, she was treated with anti-psychotic medication, and functioned well. She was a nurse, and lived independently.

Pam Brydon was Stella Sirgianidis grandniece and goddaughter. Ms. Sirgianidis, who did not have any children of her own, was especially close to Ms. Brydon. In addition to her own residence, Ms. Sirgianidis owned a house on Vine Street, in Vancouver, together with one of her sisters, Ms. Brydon’s grandmother, Margaret Baxevanidis. Ms. Sirgianidis and Ms. Baxevanidis gave the house to Ms. Brydon 1995. Ms. Sirgianidis also made a will in 1995, in which she left her residence and half of the residue of her estate to Ms. Brydon.

In March 2004, Ms. Sirgianidis began having hallucinations and was suffering from depression. She had stopped taking anti-psychotic medication. She was committed to hospital under the Mental Health Act. She remained in hospital until mid-June, when she went back to her home.

Ms. Sirgianidis’s health deteriorated, and her sister Mary Malamas moved in with her to care for her.

In October, 2004, Ms. Sirgianidis was diagnosed with leukemia. She denied she had leukemia, and refused treatment. She said she was hearing voices, and that spirits inhabited her body.

She was committed to hospital on October 8, and released the next day. She was committed again on October 12, 2004. A psychiatrist opined that she was not mentally competent to make decisions concerning her treatment for leukemia.

On October 12, 2004, she transferred three bank accounts into joint accounts with her sister Mary Malamas, Mary’s son Jimmy Malamas. She also designated them as the beneficiaries of her Registered Retirement Savings Plans. The bank employee who attended on the transfer and designation thought Ms. Sirgianidis was competent to do so.

On October 13, 2004 she transferred her house into a joint tenancy with Mary Malamas. She also instructed a notary public to draft a new will for her. She signed the will on October 19. In her new will, Ms. Sirgianidis left most of the estate to her sister, Mary Malamas, and excluded Ms. Brydon. The notary public, who was not aware of Ms. Sirgianidis’s psychiatric history, reviewed the will with her, and was satisfied that she had the capacity to make a will.

After Ms. Sirgianidis’s death on October 30, 2004, Ms. Brydon challenged the new will, the transfers of the bank accounts, the house, and the change in beneficiary of the Registered Retirement Savings Plan.

In a contest of the validity of a will in British Columbia, the person seeking to have the will declared valid has the burden of satisfying the court that the testator had capacity. (I have written a more general post on the tests for capacity to make a will here.) The person who benefits from a transfer of bank accounts, real estate or other property during the deceased lifetime has the burden of proving that the deceased had intended a gift.

Ms. Brydon named Mary Malamas and Jimmy Malamas as defendants. The defendants acknowledged Ms. Sirgianidis’s mental health problems, but argued that these problems did not affect what she did in her will, or her decisions concerning her real estate and savings. They argued that Ms. Brydon had not seen her grandaunt much near the end of Ms. Sirgianidis’s life, and that Ms. Sirgianidis was upset that Ms. Brydon was planning to sell the Vine Street house she and her sister had given Ms. Brydon.

Ms. Brydon denied that her relationship with her grandaunt had deteriorated. She did acknowledge that Ms. Sirgianidis appeared to be upset that she was selling the Vine Street house. Some witnesses testified that Ms. Sirgianidis said that Ms. Brydon had agreed when she received the house that she would never sell the Vine Street house to someone outside of the family. Ms. Brydon denied any such agreement.

Each side called a psychiatrist. Both reviewed the clinical records, but neither had examined Ms. Sirigianidis. Dr. O’Shaughnessy, who was called as a witness by Ms. Brydon, opined that it was unlikely that Ms. Sirgianidis was competent to make the will or transfer property. On the other hand, Dr. MacEwan opined that there was no evidence showing that Ms. Sirgianidis was unable to make a will. Dr. MacEwan was of the view that Ms. Sirgianidis’s delusions were unrelated to the will.

Ms. Brydon’s lawyer, G.S. Hamilton, very effectively cross-examined Dr. MacEwan:

Q . . . What if Stella believed that Pam Brydon had made a promise to her, right, and broke that promise and because Pamela had broken that promise she was now changing her will, and the promise was never true, and that fact was never true.
A Ok. If there is a delusional interpretation, sure. I mean, you know – your point I think is that Stella could have a delusion that could influence her will?
Q Right.
A And that could involve family. That could happen. Yeah, I can’t disagree with that.
Mr. Justice Halfyard, in Brydon v. Malamas, 2008 BCSC 749, held that Ms. Sirgianidis’s will made in October 2004 was invalid. He also held set aside the transfers of her house into a joint tenancy with Mary Malamas, and the transfers of the bank accounts into joint accounts, and the change in the Registered Retirement Savings Plan beneficiary.

He found Ms. Sirgianidis was suffering from a delusion that Ms. Brydon had agreed that she would not sell the Vine Street house to someone outside of the family. This delusion was calculated to influence her decisions concerning her will and estate planning. The defendants had not met the burden of satisfying the court of Ms. Sirgianidis’s capacity to make the will, or of making the other gifts to them of the bank accounts, house and Registered Retirement Savings Plans.

[Since I wrote this post, Mr. Justice Halfyard has given a decision on the issue of court costs. See my post on costs here.]

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