Can a testatrix be found to have capacity that conflicts with a medical diagnosis or the outcome of a medical test?

Courts may therefore reach a conclusion regarding capacity that conflicts with a medical diagnosis or the outcome of an MMSE or other medical test. In Lowery v. Falconer, 2008 BCSC 516, the family doctor examined the testatrix shortly before she signed the will and concluded that she was competent. Several months later, the doctor performed an MMSE and confirmed that she was capable of managing her own financial and legal affairs. Despite these medical findings, the court concluded that the testatrix lacked capacity and set aside the will. In Shkuratoff v. Shkuratoff, 2007 BCSC 1061 at para. 49, the court expressed apprehension about reliance on the score results of the MMSE in the absence of a robust explanation of the role that it plays in making the legal determination of testamentary capacity.

Ballance J. then thoroughly canvassed the law on the doctrine of suspicious circumstances, paras. 200 to 207 enunciated in the leading decision Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 [Vout].