What is the case law on "alert" records?

There was no evidence presented which would justify the record being admitted as proof pursuant to the decision of Ares v. Veneer (1970), 14 D.L.R.(3d) 4, and therefore the records are only available pursuant to s. 49. Section 49 restricts the evidence to any act, transaction, occurrence or event, and does not allow for expres sions of opinion. Items noted in the records as "alert", or "orientated" are expressions of such opinions, and are not admissible under this section.

The applicant has requested that he be allowed to reopen his case to allow the appropriate evidence to be called to justify the reception of the notes as proof pursuant to Ares v. Venner (supra). It is contended there was a misunderstanding as to the effect of allowing the notes to be filed pursuant to s. 49. The reason for the notes being allowed into evidence was clearly stated at the time of filing and it would not be appropriate to reopen the case at this time

If the court had allowed the records to be admitted as proof pur suant to the decision of Ares v. Veneer (supra), there would be evidence that the testatrix was "alert" or "oriented" on occasions described in the notes. There are also other notations which cast doubt on the mental condition of the testatrix. These notes are some indication as to the mental condition of the testatrix at various times but are certainly not conclusive of the issue. The court must look at all the circumstances to decide whether the testatrix had testamentary capacity.