League and Williams Lawyers

Tag: capacity

  • Predatory Marriages: Mental Capacity Required to Marry

    Predatory Marriages: Mental Capacity Required to Marry

    Due to the nature of estate laws, it’s not as rare as one would hope for there to be predatory marriages in BC. The Wills, Estates and Succession Act specifies that any spouse must make the adequate provision for the proper maintenance and support for their spouse’s life in their will. When you marry someone, you become entitled to a portion of their estate. A predatory marriage is when someone takes advantage of an incapable person by acting as a loving spouse, doing so with the intention to receive a portion of their estate. Usually, victims of a predatory marriage are elderly and have accumulated a large estate.

    What a Predatory Marriage Looks Like

    In a non-predatory marriage, there are typically forms of love, affection, friendship and honesty between the spouses. A predatory marriage exhibits a false sense of these traits, based upon lies where the predator is looking solely for personal gains (through their spouse’s estate). The predator is usually able to manipulate the spouse when they’re in a state of incapacity and poor cognitive abilities.

    Because a predatory marriage is a form of manipulation and dishonesty, the predator typically tries to keep everything private or even secretive. They will usually plan for a secret marriage so that none of the elderly’s family members are aware of what is happening until it has already happened. In most scenarios, to an outsider looking in, it can be rather obvious when a predatory marriage has happened.

    While not always the case, the predator in a predatory marriage is often the spouse’s primary caregiver. The caregiver can manipulate their dependent spouse, who may marry the predator without understanding the implications. Predators in predatory marriages are often people who have a close relationship with the incapacitated person.

    Capacity to Marry

    BC courts previously viewed marriage as a simple contract that almost any adult could easily understand. This meant that one did not need a high mental capacity in order to lawfully contract to marriage. Recently, the courts have taken a different approach, noting that one must have a certain degree of mental capacity to enter into a marriage. There is a presumption that after marriage, both spouses had the capacity to marry at the time of the marriage. The burden of proof is on the person claiming mental incapacity in a court case.

    The courts may apply the following test to determine capacity to marry:

    1. Do you understand who you are marrying?
    2. Do you understand the nature and consequences of the marriage?

    If the court finds that one spouse lacked the capacity to contract into marriage, they void the marriage. This means the courts consider the marriage to legally have never happened.

    BC Courts Confirm Marriages Can Be Ruled Void

    The recent BC case of Devore-Thompson v. Poulain (2017) demonstrates an instance where the courts will rule a marriage void ab initio. The courts identified that the capacity to marry has a lower threshold than for managing one’s own affairs, making a will or instructing counsel. Further, “the authorities suggest that the capacity to marry must involve some understanding of with whom a person wants to live and some understanding that it will have an effect on one’s future in that it will be an exclusive mutually supportive relationship until death or divorce.” This established the test for mental capacity to marry.

    The victim in this predatory marriage had Alzheimer’s disease and was rapidly deteriorating in terms of their mental health. She had entered into a predatory marriage with a mere stranger after he manipulated her into a false relationship. It was determined that the victim was likely unaware of the wedding and was prompted throughout the process to do what she was told. The courts ruled that she was not able to form a lifetime commitment to this person nor did she have a grip on reality. Due to her dementia, the court determined she lacked the necessary understanding of marriage, and voided the marriage.

    The Legal Test for Capacity

    The test for mental capacity is an important test in most estate-related matters. The test is commonly used for determining if the will-writer has testamentary capacity in order to create a valid will; however, this case shows that mental capacity must be present at the time of marriage as well. In order to have the capacity to marry, you must understand the effect it will have on your future and understand whom you’re marrying. Although this threshold is lower than for most other contracts, you must meet it to marry lawfully.

    If you’re suspicious that a loved one might be unknowingly entering into a predatory marriage, contact an experienced estate lawyer today. We can help to ensure that your loved one’s estate is distributed exactly as they’re intending, without any undue influence affecting their judgement.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Lucid Intervals: Temporarily Regaining Testamentary Capacity

    Lucid Intervals: Temporarily Regaining Testamentary Capacity

    In order to write a valid will in BC, the writer must be able to understand and accept their will. This is called the testamentary capacity to make a will. Often, a will-writer loses testamentary capacity after suffering an injury or illness. Once the will-writer loses testamentary capacity, many assume that they never regain the capacity to make a will. This isn’t always the case. An incapable person can experience lucid intervals where they regain testamentary capacity for a period of time.

    More specifically, according to the judgement in Banks v. Goodfellow (1870), for a will-writer to have testamentary capacity they must be:

    1. Capable of understanding the act of making a will and its effects;
    2. Capable of understanding the nature and extent of their property relevant to the disposition;
    3. Capable of evaluating the claims of those who might be expected to benefit from [his/her] estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;
    4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and,
    5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

    Will-writers must be able to understand the nature of their estate, the distributions they’re making in their will and the overall impact their will is going to have.

    Lucid Intervals

    A lucid interval is a period of time where someone without testamentary capacity regains capacity. Depending on the mental state and health condition of the testator, this can be as short as a few moments. For people who suffer from a condition such as Alzheimer’s disease, they may have lucid intervals lasting an entire day or more.

    To demonstrate testamentary capacity with a lucid interval to legally change their will, an applicant won’t have to prove the illness was cured. They must only prove that the will-writer had testamentary capacity in the moment the will was made.

    Lucid Intervals Confirmed by the Courts

    Lucid intervals were at issue in the Alberta case of Zukas Estate (Re) (2016). The will writer’s testamentary capacity was questioned as he was in hospice when his will was executed. The deceased was reportedly on medications that could have affected his testamentary capacity when he wrote the will. The drafting lawyer had performed tests on the writer to ensure that he had capacity to make a valid will. About 2 weeks after the will was drafted, a codicil was made to fix an error in the will. The lawyer identified that the will-writer did not have the testamentary capacity at the time of the codicil being executed. Was this enough evidence to conclude that the will-writer didn’t have the testamentary capacity when the will was executed?

    The Court found that this wasn’t evidence of whether or not the deceased had testamentary capacity while executing the will. As stated by the judge, “all that is required of a testator is a lucid interval. The Respondents have failed to identify any evidence that overwhelms [the lawyer’s] assessment that the Deceased, at the time of giving instructions and on the date of execution, had testamentary capacity.” The time before or after a will’s execution doesn’t necessarily speak to the testator’s capacity when they wrote the will.

    Mental Illnesses

    In Re Weidenberger (Estate) (2002), the will-writer was diagnosed with a mental illness prior to writing the will. The courts identified that the will-writer must have the testamentary capacity “at the time the will was created.” The judge further mentions that, “what the Deceased’s state of mind was one year before or one year after the date of the document is not overly relevant.”

    In the end, it was determined that the will-writer had the testamentary capacity to execute their will. The mental illness, while restricting the deceased’s ability to understand the value of the estate, did not restrict their ability to understand the terms.

    Reminders for Will Writers

    The mere fact that a testator doesn’t have the testamentary capacity before or after executing a will is not sufficient evidence to prove a case for a lack of testamentary capacity because of lucid intervals. If you’re unclear of the impact of a lucid interval in regards to will writing, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.

  • Testamentary Capacity: How Capacity to Write a Will is Assessed

    Testamentary Capacity: How Capacity to Write a Will is Assessed

    To write a valid will in BC, the writer must have testamentary capacity at the time of writing the will. As described in the Wills, Estates and Succession Act, someone with testamentary capacity is defined as a “person who is 16 years of age or older and who is mentally capable of [making a will].” More specifically, according to the judgement in Banks v. Goodfellow (1870), for a will-writer to have testamentary capacity they must be:

    1. Capable of understanding the act of making a will and its effects;
    2. Capable of understanding the nature and extent of their property relevant to the disposition;
    3. Capable of evaluating the claims of those who might be expected to benefit from [their] estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;
    4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and,
    5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

    In short, testamentary capacity is your ability, or lack thereof, to understand the significance of your will. While these criteria might be clear, it’s often unclear how one can prove/disprove the cognitive capacity of another. In this blog, we’ll go over the most common ways professionals assess capacity and why.

    Capacity to Write a Will

    Testamentary capacity is only one of many requirements for valid wills.

    The test for testamentary capacity is not a medical test, it is a legal test. This means that a judge or lawyer is able to determine whether a person has the testamentary capacity or not. A doctor doesn’t have authority in this respect, however, it is common to consult with medical experts during the process. In some cases, close family and friends can be helpful in determining a person’s mental capacity. People close to the testator are typically familiar with their mental state and understand if their mental capacity has deteriorated.

    There are many different definitions of mental capacity. People often have the legal capacity to do certain things, but not others. For example, one could be mentally capable of writing a valid will, however, incapable of appointing a power of attorney. The capacity to write a will is one which specifically fits the criteria outlined above.

    Lawyers Assessing Capacity

    Before a drafting lawyer prepares a will, they’re responsible with ensuring the testator has the appropriate capacity to do so. A drafting lawyer is not to prepare a will for someone who doesn’t have the testamentary capacity to write a will. This is because a person who doesn’t have the testamentary capacity to make a will is someone who doesn’t understand the implications of the will – they’re unfit to make decisions regarding their estate assets. Lawyers will sometimes do assessment tests themselves, asking questions to determine where a person’s mental capacity stands. It’s rare for a lawyer to consult a medical professional to evaluate their client before writing a will for them, but it can be necessary in some instances.

    Depending on the context and bequests the person is wishing to make in their will, a lawyer can sometimes detect incapacity. When a testator is making a rather controversial will – i.e. disinheriting one or all of their children without strong or logical reason – it may be grounds for suspicion of incapacity. In some cases, such as will-writing for an elderly person, the lawyer will use a questionnaire, asking questions during the drafting process. Lawyers might ask questions along the lines of:

    • Approximately, what is your estate worth?
    • Why are you choosing the beneficiaries you’re choosing?
    • Why are you choosing the inheritances you’re choosing?
    • Do you have any medical conditions that might be impacting your decisions?

    Generally speaking, drafting lawyers will ask questions that can help to prove the above criteria for testamentary capacity.

    Will Writing Without a Lawyer

    Since it’s ultimately up to the will drafting lawyer to determine capacity, wouldn’t this mean that someone who writes their own will can write it when they’re incapable? Technically, the answer is yes, however, the will would likely be challenged by interested parties, usually children, who are unhappy or otherwise concerned by it. In this case, there would have been no one around at the time of the will being written to determine the person’s mental capacity. This could warrant a suspicious circumstance and be grounds for challenging the validity of the will. For more information, read our blog on challenging for testamentary capacity.

    If you would like a lawyer to help draft your will and ensure you have the testamentary capacity to write a valid will, contact an experienced estate lawyer today.

    Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.