How have Alberta Courts treated holographic wills when there is a question of whether the testator had capacity while under the influence of medication. or drugs.

[139] Alberta courts have often used the test for testamentary capacity set out in Banks v Goodfellow (1870), All ER Rep 47 (Eng QB) at 56:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

[140] This test was restated in more contemporary terms in Re Schwartz (1970), 1970 CanLII 32 (ON CA), 2 OR 61 (CA), aff’d 1971 CanLII 17 (SCC), [1972] SCR 150, cited in Weidenberger Estate, 2002 ABQB 861 at para 34, 324 AR 286:

The Testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty, and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property.

[141] A person may have testamentary capacity despite confusion or cognitive impairment. Medical evidence may help a judge make this factual determination, but is not necessarily conclusive. In Stevens v Morrisroe, 2001 ABCA 195, 281 AR 201, Picard JA for the majority stated (emphasis added):

17 Capacity is to be assessed both when instructions are given and when the will is executed: C.H. Sherran et al, Williams on Wills, 6th ed. (London:Butterworths, 1987) at p. 25.

18 A testator may have testamentary capacity even if she is not of entirely sound mind: Banks, supra, at p. 56. A person diagnosed with senile dementia may have testamentary capacity: Re: Ferguson (1962), 1962 CanLII 802 (PE SCTD), 48 M.P.R. 154 (P.E.I.S.C.).

19 Even if a disease is of a progressive nature, it is a question of fact whether she has sufficient mental awareness to appreciate and understand the testamentary act: T.G. Feeney, The Canadian Law of Wills, 3^rd ed. (Toronto: Butterworths, 1987) at p.36. In Leger v. Poirier, 1944 CanLII 1 (SCC), [1944] S.C.R. 152 at 161, Rand, J said:

 [The mind of the old person must be capable] of carrying apprehension beyond a limited range of familiar responses and suggested topics.... Merely to be able to make rational responses is not enough, not to repeat a tutored formula of simple terms...[the mind must be able] to comprehend of its own initiative and volition.

Soundness of mind is a practical question and does not depend on scientific or medical definition. As Feeney said, supra, at p. 33:

Medical evidence is not required not necessary nor necessarily conclusive when given.

20 Put simply, testamentary capacity is possible even where the testator has a disease of the mind. While medical or scientific evidence may be of assistance, the finding of testamentary capacity is a matter of fact for the trial judge to determine.

[142] Verville J recently relied on the above passage in Zahn v Taubner, 2012 ABQB 504 at para 197, where he discussed the issue of capacity.

[143] In Weidenberger Estate, the respondents conceded that the holograph will in question met the technical requirements of the legislation then in force, but challenged the validity of the will on the basis that the deceased lacked testamentary capacity at the time the will was executed. Clark J considered the evidence of several mental health experts, who disagreed as to whether the deceased had testamentary capacity at the relevant time. Applying the test in Bank v Goodfellow, Clark J found that the deceased had testamentary capacity to execute the holograph will despite the fact that the deceased was mentally ill and suffered from confusion, and despite the fact that the deceased lacked the capacity to manage his own affairs.

[144] At para 33, Clark J cautioned that the test for testamentary capacity, as set out in Banks v Goodfellow, should not be applied so strictly as to defeat the deceased’s wishes. He quoted the following passage from Den v Vancleve, 2 Southard 589 at 660 (NJ Sup Ct 1819) (emphasis added):

By the terms 'a sound and disposing mind and memory' it has not been understood that a testator must possess these qualities of the mind in the highest degree; otherwise, very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done; for even this would disable most men in the decline of life; the mind may have been in some degree debilitated, the memory may have become in some degree enfeebled; and yet there may be enough left clearly to discern and discreetly to judge, of all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory. ([cited in] Banks v. Goodfellow; Re MacMillan Estate, [2000] A.J. No. 180 (Alta Surr. Ct.); and Scramstad v. Stannard (1996), 1996 CanLII 10408 (AB QB), 188 A.R. 23 (Q.B.), additional reasons 1996 CanLII 10450 (AB QB), 190 A.R. 1 (Q.B.).)

[7] In the seminal case of Banks v. Goodfellow, [1861-73] All E.R. Rep. 47, Coburn, C.J. said the following regarding testamentary capacity at pp. 56 and 57:

...It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.

...

It may be here not unimportant to advert to the law relating to unsoundness of mind arising from another cause, namely, from want of intelligence arising from defective organisation, or from supervening physical infirmity or the decay of advancing age, as distinguished from mental derangement, such defect of intelligence being equally a cause of incapacity. In these cases it is admitted on all hands that, though the mental power may be reduced below the ordinary standard, yet, if there be sufficient intelligence to understand and appreciate the testamentary act in its different bearings, the power to make a will remains. It is enough if, to use the words of Sir Edward Williams in his work on EXECUTORS, if “the mental faculties retain sufficient strength fully to comprehend the testamentary act about to be done.” 

...

In a subsequent case of Den v. Vancleve (12), the law was thus stated:

“By the terms ‘a sound and disposing mind and memory,’ it has not been understood that a testator must possess these qualities of the mind in the highest degree, otherwise very few could make testaments at all; neither has it been understood that he must possess them in as great a degree as he may have formerly done, for even this would disable most men in the decline of life. The mind may have been in some degree debilitated, the memory may have become in some degree enfeebled, and yet there may be enough left clearly to discern and discreetly to judge of all those things, and all those circumstances which enter into the nature of a rational, fair, and just testament. But if they have so far failed as that these cannot be discerned and judged of, then he cannot be said to be of sound and disposing mind and memory.”

[8] It is clear from Banks v. Goodfellow that the question of whether or not a testator had testamentary capacity is a very fact-specific analysis, that is, whether this particular testator with this particular medical condition had testamentary capacity at the time of execution of the Will.

[9] Courts have long recognized that if too onerous a standard is set for establishing testamentary capacity, this would have the effect of making it impossible for many elderly people to prepare Wills. In the Supreme Court of Canada case of Laramée v. Ferron (1909), 1909 CanLII 50 (SCC), 41 S.C.R. 391, the following passage appears at p. 409:

We must be careful not to substitute suspicion for proof. We must not by an extensive doing so render it impossible for old people to make wills of their little worldly goods. The eye may grow dim, the ear may lose its acute sense, and even the tongue may falter at names and objects it attempts to describe, yet the testamentary capacity may be ample.

To deprive lightly the aged thus afflicted of the right to make a will would often be to rob them of their last protection against cruelty or wrong on the part of those surrounding them and of their only means of attracting towards them such help, comforts and tenderness as old age needs.

[181] As noted above, there is no single indicia or test to establish whether or not the deceased had the requisite testamentary capacity as of May 13th,1997. It is necessary to look at all of the evidence and all of the circumstances, both medical and non-medical.

[182] It is not possible to ever answer absolutely whether or not a testator had testamentary capacity at the time of signing of the Will. The question of testamentary capacity is difficult and complex, and clearly the fact that Hilarius West had a brain tumor is not determinative of this issue.

[183] The case of Eady v. Waring (1974), 1974 CanLII 492 (ON CA), 43 D.L.R. (3d) 667 (C.A.) is authority for the proposition that the Court is entitled to look at all of the surrounding circumstances in determining the issue of testamentary capacity.

[184] The Plaintiffs do not have the burden of proving this issue absolutely, but rather must prove this issue on a balance of probabilities.

[185] Unquestionably, the deceased was under an Alberta Guardianship Order at the time that the Will was signed in British Columbia. Section 65 of the Dependent Adults Act states: “A Guardianship Order or a Trusteeship Order is not of itself sufficient to establish that a dependent adult does not have legal capacity to make a testamentary disposition.” Thus, the existence of the Alberta Guardianship and Trusteeship Order is some evidence dealing with this issue but is not dispositive of the issue of testamentary capacity.

[186] It is clear that at the time of his operation of March 1996 the deceased was doing very poorly, was given a very poor prognosis following his surgery, and was told that he had 12 months to live. The evidence before me establishes, however, that the deceased did remarkably well post-operatively, particularly with the assistance of chemotherapy and Decadron medication. In fact, he lived 17 months following his surgery.

[187] He was able to make a decision on his own to move to B.C., and in fact lived alone in Powell River from July 1996 until late September of that year. There was no evidence led before me that he was not able to properly care for himself during that period. He remained clean and well groomed, and was doing some of his own banking. With the assistance of Mona Stewart, he was shopping and purchasing furnishings and fixtures for his new house in Powell River.

[188] By all accounts, he was extremely active and remained in close touch with Jeff Stewart in Alberta, who was looking after his business affairs. At all times he was very concerned about his business affairs. He continued to have significant social interaction, and raised with a number of individuals the fact that he wanted to change his Will.

[189] Significantly, when he met Raymond Moffit in November 1996, the deceased made a decision of his own volition to waive interest on a mortgage loan. Moffit confirmed that the deceased’s personality remained unchanged, that is, that he continued to tease and joke, as was his custom.

[190] In waiving interest on the Moffit mortgage loan, the deceased demonstrated that he knew the distinction between principal and interest, and it is uncontroverted that it was his decision and his alone to waive interest.

[191] He continued to have extremely close family contacts in Powell River, and, surely, if he was having difficulty communicating, this would have become apparent to those who were seeing him on a regular basis.

[192] It is clear that when the deceased met Johnston he made some decisions to delete and add some beneficiaries and gave rational reasons for doing so. It was the deceased who raised the issue of tax liability as well as the waiver of loan interest, and it was clear that throughout the deceased remained strong-willed and very much knew his own mind. It was the deceased who provided the names of institutional legatees to Johnston as well as corporate information, all of which could only have come from the deceased.

[193] The evidence discloses that because he had a Will which was made in 1993, the deceased was fully familiar with the concept of what a Will was and thus he did not have to learn this. He very much knew the size of his estate, and was fully aware of his extended family. The evidence before me establishes that this was an extremely close extended family and remained close throughout. The fact that the Will contains 25 non-institutional individual bequests is surely strong evidence that the Plaintiff was fully aware of his extended family.

[194] Although Johnston had never met the deceased prior to November 8^th, 1996, he, too, concluded that although the deceased had a very serious terminal medical condition, he very much knew his own mind, and was able to make decisions about his Will.

[195] It is significant that Johnston reviewed the draft Wills on a clause-by-clause basis, and concluded that the deceased did have testamentary capacity. Moreover, Johnston arranged to have the deceased attend on Dr. Bonsor immediately prior to signing the Will.

[196] Drs. Bonsor, Weiss and Montgomery came to the conclusion that the deceased had testamentary capacity. While noting his expressive aphasia, all three came to realize that word-finding difficulty was by no means synonymous with difficulties in understanding, and it is significant that all three were fully alive to the concern raised about testamentary capacity, and, indeed, were concerned at the same time about the possibility of undue influence. There is no evidence that the deceased’s condition changed between October 28^th, 1996 and May 13^th, 1997. The medical records exhibited before me reveal that the deceased’s medical condition remained relatively stable and that he continued to use Decadron throughout this period.

[197] The events leading up to the execution of the Will on May 13^th, 1997 clearly reveal that there was no attempt whatsoever to rush the process of executing a new Will and the lawyer taking instructions took the extraordinary step of having the deceased examined by his physician on the date of signing. Moreover, when one examines the Wills of November 20^th, 1996 and May 13^th, 1997, it is clear that the Wills do not contain any extraordinary bequests and appear to be perfectly normal testamentary dispositions, given that the deceased had no wife or children.

[198] The institutional bequests made in the Wills are perfectly rational, bearing in mind that the deceased came from Radway and moved to Powell River prior to his death. The bequests to the Alberta Lung Association and the Radway Health Care Centre were mentioned in the 1993 Will. 

[199] The non-medical evidence led before me does not contradict the medical opinions on competence from Drs. Bonsor, Weiss and Montgomery, and, indeed, is entirely consistent with them. The non-medical evidence led at trial establishes that up to May 13^th, 1997 the deceased was functioning well and making decisions. There is no evidence that the deceased lacked testamentary capacity on that date.

[200] As was noted by the British Columbia Court of Appeal in Field v. James, [2001] B.C.J. No. 678, observations of lay witnesses are accorded significant weight in estate litigation. The following passage appears at para. 60 of that Judgment:

I should also keep in mind that the observations of a lay witness as to testamentary capacity carry as much authority as those of a doctor...

[201] I am satisfied that Johnston adopted a cautious and prudent approach to taking instructions for the Will and having the same executed. He was extremely patient throughout and was fully alive to the issues of testamentary capacity, and that in order for the Will to be valid, the deceased had to know and approve of the contents of the Will. His patient, cautious and prudent approach is exactly what Drs. Weiss, Montgomery and Bonsor recommended.

[202] Based on all of the foregoing, I conclude that the Plaintiffs have proven on a balance of probabilities that Hilarius West had testamentary capacity on May 13^th, 1997. The Will of that date should be admitted to probate.

[33] The classic test for testamentary capacity was set out in Banks v Goodfellow (1870), LR 5 QB 549 and quoted as follows in Scramstad v Stannard 1996 CanLII 10408 (AB QB), [1996] 188 AR 23 at para 130:

(i) The testator must understand the nature of the act and its effect;

(ii) The testator must understand the extent of the property of which he/she is disposing

(iii) The testator must be able to comprehend and appreciate the claims to which he or she ought to give effect;

(iv) The testator must not be suffering from a disorder of the mind or an insane delusion which would influence his or her Will in disposing of his or her property and bring about a disposal which, if the mind had been sound, would not have been made.

[34] Certain features of testamentary capacity must be borne in mind. First, capacity in general, and testamentary capacity in particular, is a legal question, not a medical one. While medical evidence can and often does inform the legal assessment, such evidence is not necessarily determinative. In Stevens v Morrisroe, 2001 ABCA 195 at para 19, Picard JA stated:

Soundness of mind is a practical question and does not depend on scientific or medical definition. As Feeney said, supra, at p. 33:

Medical evidence is not required, not necessary nor necessarily conclusive when given.

[35] The case law establishes that the evidence of laypersons may carry greater weight, particularly if such persons were better acquainted with the testator and/or had greater opportunity to observe him or her. See, for example, Baker Estate v Myhre 1995 CanLII 9056 (AB QB), [1995] 168 AR 248 (QB) and Arena v Ammirati, 2020 ABQB 206.

[36] A lawyer’s evidence also may carry significant weight. The Court in Scramstad said this at para 140:

Further, the test can also be answered, if there is clear and convincing evidence of the deceased’s solicitor’s judgment as to whether the deceased had testamentary capacity at the time the deceased made his or her Will.

[37] Second, the case law is clear that a diagnosis of mental illness, cognitive impairment or dementia does not necessarily preclude testamentary capacity. See, for example, Re Weidenberger Estate, 2002 ABQB 861 at para 29, Gamache v Gamache, 2005 ABQB 944 at para 52 and Christensen v Bootsman, 2014 ABQB 94 at para 141.

[38] The Court in Scramstad noted at para 132 that “...the adoption of an overly strict test could and probably would result in many testators, especially the elderly, being stripped of the right to dispose of their assets as they see fit”. The Court went on to say at paras 137-8:

In my view, it is important to keep in mind at all times the instruction contained in Goodfellow, supra, to the effect that: just because a person’s mind and memory is not what it used to be, does not mean that such person lacks testamentary capacity; the test to determine testamentary capacity is not therefore one of certainty or satisfaction beyond a reasonable doubt.

Rather, based on the authorities referred to, in my view the test is one that can be answered by a layman possessed of good common sense based on everyday experience and judged on a “balance of probabilities” that is: is it more probable than not, having regard to all of the evidence that a person at the time such person made his or her Will possessed or did not possess a disposing mind and memory to “clearly and discreetly judge, all those things, and all those circumstances, which enter into the nature of a rational, fair and just testament”?

[39] I note also that s. 85 of the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2 provides that a guardianship or trusteeship order is not itself sufficient to establish that the represented adult does not have testamentary capacity.

[40] Finally, capacity is not a “bright line” or “threshold” question; rather, it is both time- and task-specific. A person who lacks capacity at some points in time may have other periods of lucidity. Further, a person may have capacity to undertake some tasks, but not others. See Arena at para 89.

[41] As set out above, three purported wills are at issue: the 2005 Will, the 2011 Will and the 2012 Holograph Will.

i. Physical and Mental Impairment

[74] Diane argues that there is no evidence that the Deceased’s mental impairment improved between the 2011 Will and the 2012 Holograph Will. Neither, however, is there evidence of deterioration. To the contrary, Diane acknowledged during Questioning that the drug the Deceased was prescribed by the Seniors Health Clinic may have improved her condition somewhat.

[75] I take guidance from the Court of Appeal’s statement in Stevens at para 19 that “Even if a disease is of a progressive nature, it is a question of fact whether she has sufficient mental awareness to appreciate and understand the testamentary act.” While the Deceased in Stevens had been diagnosed with dementia, the Court of Appeal expressly stated at para 18 that a person with such a diagnosis may yet have testamentary capacity. In the absence of evidence that the Deceased’s impairment had advanced significantly between the 2011 Will and the 2012 Holograph Will, I find that her prior diagnosis does not constitute a suspicious circumstance sufficient to displace the presumption of testamentary capacity.

[76] It is significant, in my view, that Mr. Watson prepared the 2012 EPA one week after the Deceased signed the 2012 Holograph Will. This independent professional, under a duty to assess and attest to capacity, had no concerns about the Deceased’s fitness to execute the 2012 EPA within days of her creating the 2012 Holograph Will.

[77] In Leafloor v Christianson, 2009 ABQB 285, the testator signed a holograph will two months after executing an enduring power of attorney and a personal directive. In considering whether there were circumstances calling into question the testator’s capacity, the Court noted at para 47 that “a senior lawyer was of the view that Mr. Anderson had the capacity to grant an enduring power of attorney and to issue a personal directive.” The lawyer’s assessment of capacity is much closer in time to the execution of the holograph will in this case. I find that it satisfies any collateral concerns arising from the other factors, and sustains the presumption.

C. The Deceased’s medical condition

[71] The Respondents allege that there is a possibility that the Deceased was taking medication that could have adversely affected his testamentary capacity. They point to a voicemail from the social worker to Mr. Dunlop left sometime between May 19 and 28, 2015. In the voicemail, the social worker states her concern about the Deceased’s ability to sign a codicil due to medication that he was taking that could make him “groggy”.

[72] The voicemail is consistent with Mr. Dunlop’s evidence that when he attempted to have the Deceased execute the codicil on May 28, 2015, he concluded that the Deceased did not have testamentary capacity. This is evidence that, on the date she left the voicemail, the social worker appears to have been alive to the issue of testamentary capacity. Further, there is no evidence that the social worker had concerns regarding the Deceased’s capacity on May 15, 2015 when she initially met Mr. Dunlop.

[73] The Respondents’ allegation is unsupported by any medical evidence. The burden is on the Respondents to point to evidence that creates a genuine issue for trial. The Respondents failed to take reasonable steps to obtain medical evidence and they failed to point to any evidence that the Deceased’s medical condition caused him to no longer have testamentary capacity.

[195] It is not sufficient simply to show that Ford had the cognitive ability and capacity to communicate her testamentary wishes. Those wishes must be shown to be the product of a sound and disposing mind, both at the time that instructions were given and when the Will was executed: Stevens v Morrisroe, 2001 ABCA 195, [2001] AJ No 932 at para 17 (CA), citing CH Sherran et al, Williams on Wills, 6th ed (London: Butterworths, 1987) at 25. The Defendant submits that although the testator must have testamentary capacity at the time when instructions are given to his/her solicitor, at the time of execution, the testator only needs to understand that the document in front of her gives effect to her earlier instructions, citing Oosterhoff on Wills and Succession, 6^th ed (Toronto: Thomson Carswell, 2007) at 222 and Faulkner v Faulkner (1920), 1920 CanLII 4 (SCC), 60 SCR 386 at paras 6 and 21.

[196] In order to have a sound disposing mind, it was necessary that Ford: know and understand that she was executing a testamentary document disposing of assets, know the general value and nature of her estate, and consider all persons having a moral claim to the assets being disposed of, including those persons she was excluding from the Will:  Banks v Goodfellow, [1861‑73] All ER Rep 47 (QB); Hall v Bennett Estate (2003), 2003 CanLII 7157 (ON CA), 64 OR (3d) 191, [2003] OJ No 1827 at paras 14 and 15 (CA); Dansereau Estate v Vallee, [1999] AJ No 878 at para 157 (QB).

[197] In Stevens v Morrisroe, 2001 ABCA 195 at paras 18‑20, Picard J.A. for the majority stated:

18 A testator may have testamentary capacity even if she is not of entirely sound mind: Banks, supra, at p. 56. A person diagnosed with senile dementia may have testamentary capacity: Re: Ferguson (1962), 1962 CanLII 802 (PE SCTD), 48 M.P.R. 154 (P.E.I.S.C.).

19 Even if a disease is of a progressive nature, it is a question of fact whether she has sufficient mental awareness to appreciate and understand the testamentary act: T.G. Feeney, The Canadian Law of Wills, 3rd ed. (Toronto: Butterworths, 1987) at p.36. In Leger v. Poirier, 1944 CanLII 1 (SCC), [1944] S.C.R. 152 at 161, Rand, J said:

[The mind of the old person must be capable] of carrying apprehension beyond a limited range of familiar responses and suggested topics.... Merely to be able to make rational responses is not enough, not to repeat a tutored formula of simple terms...[the mind must be able] to comprehend of its own initiative and volition.

Soundness of mind is a practical question and does not depend on scientific or medical definition. As Feeney said, supra, at p. 33:

Medical evidence is not required not necessary nor necessarily conclusive when given.

[198] The premise of the Plaintiffs, at least in part, is that all or virtually all of Ford’s assets came either from her first husband Henry Ford, or directly or indirectly from Otto Zahn in the sense that he had entered into a separation agreement with her which gave her money, and his sons settled her interest in his estate with her. There was a significant departure from the 1985 Will, and the April and May Wills were generated primarily through the activities of Ric and Bob who in the end were the primary beneficiaries along with their brother Rudy.

[199] The Plaintiffs’ expert, Dr. Hussain, gave opinion evidence to the effect that Ford did not have the mental capacity to provide and execute the April and May Wills. Dr. Pachet on the other hand was of the opinion that Ford had the required capacity at the various times she met with Lynass. Dr. Pachet candidly admitted during cross-examination that additional information that was put to him would be important in formulating his opinion. He was not asked, however, whether any of the additional information put to him would change his opinion.

[200] I found both Dr. Hussain and Dr. Pachet to be highly qualified experts. Both agreed that the Mini-Mental Status Exam (MMSE) frequently given by healthcare clinicians is at times not helpful in determining a person’s decision making capacity. They agreed that completion of a semi-structured clinical interview to assist in the determination of a patient’s decision making capacity is typically viewed as the gold standard when making a capacity determination. Their respective opinions were in each case based on after the fact information which was provided to them for their review.

[201] It is apparent that Ford at times consumed too much alcohol and the type and amount medication she was on affected her cognition on occasion. With respect to the medication alone, this would be true of virtually anyone with terminal cancer during the last few months of their lives. I accept the evidence of Nadia, Heather, Randy and Dennis that at times Ford was confused, hallucinating or not responding. It is clear from the hospital records, to the extent that they can be relied on, that there were times when Ford lacked capacity. The fact that she went into a coma on about March 22, 2000 and was admitted to hospital is well documented. 

[202] However, none of the lay witnesses who testified for the Plaintiff assert that Ford was continually in a state where she was unable to communicate or, simply put, to make sense during the vast majority of their visits.

[203] The witnesses for the defence, Bob and Ric, essentially were of the view that Ford was responsive most of the time. I am mindful that they are two of the three beneficiaries. John Bradley testified that in his many conversations with Ford it was apparent on a few occasions that she was suffering from delirium. He stated, however, that she would rally after two or three days and again be oriented in place and time. I accept his evidence on this point.

[204] While it is clear that Lynass had a friendship and solicitor client relationship with the Taubner family, I find for the reasons previously stated that the negative comments in the Graesser Judgment do not impact on his judgment and integrity in this case. In fact, the Plaintiffs do not question his integrity, but simply suggest that he was duped by Ric and Bob and more particularly Ric who told him Ford was competent.

[205] I find that Lynass gave clear and cogent evidence with respect to how he went about obtaining instructions for the preparation of the April and May Wills. He was told by Ford that her existing Will was old and out of date. That Will was executed on September 27, 1985 while she was living with Otto Zahn, the beneficiary of the residue of her estate. Lynass explained that he was only concerned that the 1985 Will might contain trust and estate planning, but was assured that it did not. Ford was correct on this point. Further, she was not wrong to describe a Will prepared almost 15 years earlier while living common law with an individual now dead as being old and out of date.

[206] The initial instructions were taken while Ford was residing in the rumpus room in the basement of her parents home. There is no documentation which assists with respect to Ford’s capacity on the day in question. Lynass was satisfied as to her capacity to give instructions. Nadia did not give evidence to the contrary. In the circumstances, I accept the evidence of Lynass and find that Ford had capacity to give instructions on March 4, 2000.

[207] It was argued that Ford did not know the general value and nature of her estate, given the fact that Lynass confirmed that the $500,000 Ford had told him was in a Royal Bank account was not there. I have reviewed the evidence regarding the nature and extent of Ford’s estate. Although she might have been confused as to where, or in what form, certain amounts were held, I am satisfied that she had an accurate appreciation of the general value and nature of her estate.

[208] The April Will was executed after Lynass obtained specific instructions with respect to the disposition of the jewellery. In my opinion, these instructions were sufficiently detailed to indicate that Ford had capacity on that date. I accept the evidence of Lynass that when he indicated to Ford that he was troubled about the wording concerning the disposition of the diamond watch to Randy’s future wife, she jokingly said “that’s your problem” or words to that effect and this again indicates in my view a degree of cognition. Further, it is apparent that Ford was well aware that Randy had separated from his common law wife. Again, Nadia, who was present to witness the April Will, did not comment with respect to Ford’s mental capacity on that day and the hospital records to the extent they are of value do not indicate a problem with respect to mental capacity.

[209] In my view, the fact that Ford chose not to leave something to Ric’s two children, one of Rudy’s three children (Lara), one of Bob’s two children, nor to Craig Wilson does not in any way impinge on her degree of cognition. People often decide, for unspoken reasons, not to bequeath to certain individuals. However, I do note that an explanation was given by Sea and John Bradley with respect to Lara. Further, at the end of the day Ford left the residue of her estate to her three brothers, her closest kin. While some might have thought the residue would go to the Zahn brothers, her ultimate bequests could hardly be considered a surprise.

[210] Finally, with respect to the May Will, I accept the evidence of Lynass that Ford recognized who he was, was oriented in time and space, and understood that the fully typed Will accurately reflected her intentions, except for some grammatical changes. Again, there was nothing in the hospital records which would call into question Lynass’ assessment with respect to capacity on that date, and Nadia, who was present both before and shortly after the execution of the May Will, did not give evidence to the contrary.

[211] I note that there was evidence that Ford had difficulty with her vision. Randy stated that around April 24 and 25, 2000, Ford could not see. There was other evidence to the effect that she required a magnifying glass in order to read. I accept that Ford had considerable difficulty with her vision near the end of her life. However, there was no evidence to suggest that she did not review and comprehend the May Will.

[212] As stated above, both Dr. Hussain and Dr. Pachet are highly qualified experts with conflicting opinions. Neither one had the benefit of being acquainted with or observing Ford. I accept the evidence of Dr. Hussain that at times Ford lacked testamentary capacity, but I am not persuaded that she was in a constant state of delirium so as to be devoid at all times of having an adequate understanding of her testamentary related activities. In the result, I accept the opinion of Dr. Pachet, but do so primarily on the basis of the lay testimony, particularly that of Lynass. I therefore find that Ford had capacity.

[76] There is no dispute that Mr. Medeiros’ physical condition was deteriorating after he was diagnosed with terminal cancer. He was using increasing doses of pain medication as he was suffering physically with pain. He was at times described in the medical records as sleepy and groggy. He was prescribed Ritalin to help with his grogginess. However, no medical evidence was led by the applicants with respect to how or if the pain medication or Ritalin would have impacted his mental capacity or whether it would have caused mental impairment.

[77] The evidence of Mr. Goose, which is not disputed, is that he knew Mr. Medeiros for many years. He was aware of his medical condition. Mr. Goose, as an experienced lawyer, met with Mr. Medeiros alone and asked him questions to satisfy himself that Mr. Medeiros had capacity to provide him with Will instructions. Based on his meeting with Mr. Medeiros, wherein he had the opportunity to observe his behaviour, and having known him for a number of years, Mr. Goose determined that despite Mr. Medeiros’ diagnosis of terminal cancer, he had capacity to provide him with instructions to sign a new Will.

[78] While not having notes of his meeting with Mr. Medeiros is not ideal, Mr. Goose swore an affidavit within a few months of meeting with Mr. Medeiros. It was also evident from the cross-examination on his affidavit that he had a detailed and specific recall of his meeting with Mr. Medeiros. I therefore find his evidence to be reliable. It is also not disputed.

[79] The evidence of Mr. Goose supports a finding that Mr. Medeiros was not suffering from physical or mental impairment sufficient to rebut the presumption of testamentary capacity.

[80] The applicants make general statements that the medication Mr. Medeiros was using substantially limited his ability to properly comprehend his actions and what was going on around him. They provided no specifics or details to support that allegation other than forgetting a password, which is not an uncommon occurrence for many. They say that given the medications he was using, they do not believe that he had the requisite capacity to make a decision to change his Will or to give instructions to Mr. Goose to do so.

[81] The applicants’ evidence, however, is contradicted by their own expert, who is a capacity assessor. She found that she could not conclude that Mr. Medeiros lacked testamentary capacity based on the medical records, which included information about the type and dosage of medication he was using.

[82] The applicants’ general statements about Mr. Medeiros’ level of pain and use of medication to control that pain do not lead me to conclude that Mr. Medeiros suffered from any mental impairment sufficient to rebut the presumption of testamentary capacity.

[83] I also have some concerns with Dr. Lightfoot’s report. First, Dr. Lightfoot never met with Mr. Medeiros personally, and she agreed that Mr. Goose had the advantage of meeting him in person when he signed the 2015 Will. She did not speak with any of Mr. Medeiros’ family members or his spouse to ascertain their observations of Mr. Medeiros prior to his death. She did not speak with any of his caregivers. Her report was based solely on a review of the medical records.

[84] While Dr. Lightfoot acknowledged that there is insufficient evidence in the medical records to conclude that Mr. Medeiros lacked testamentary capacity, she then concludes that based on other factors, such as Mr. Medeiros not telling his children he was excluding them completely from his new Will, that it was unlikely he was aware that he was signing a new Will, or that he understood the implications of signing it. These two findings appear to be contradictory. Furthermore, a key fact upon which Dr. Lightfoot appears to place much reliance was erroneous. The applicants were not excluded completely from his new Will.

[85] As Dr. Lightfoot only reviewed the medical records to form her conclusion and based on the erroneous information that she was given, I place little reliance on Dr. Lightfoot’s report. It does not lead me to conclude that Mr. Medeiros suffered from any mental impairment sufficient to rebut the presumption of testamentary capacity.

[86] There is no dispute that Mr. Medeiros was suffering physically and was in pain. However, there is insufficient evidence that his pain level and medications would have had caused him any mental impairment sufficient to rebut the presumption of testamentary capacity.