What is the test for a physician to determine whether a person has a testamentary capacity?
Alberta, Canada
The following excerpt is from Babchuk v. Kutz, 2006 ABQB 422 (CanLII):
The cases suggest that: “the evidence of a layperson may be preferred, or carry greater weight than that of a physician...”. Further, “the question of whether a person has testamentary capacity is a practical question which may be answered by a layman of good sense and/or on the basis of the judgment of the deceased's solicitor.” Further, “a person may be competent although a trustee or guardian has been appointed to manage such persons affairs or where such person has been diagnosed with Alzheimer's.” Scramstad v. Stannard [1996] 40 Alta. L.R. at paragraph 133.
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