In Kay v Kay Sr, 2019 ONSC 3166, Maranger J considered a will challenge where the testator executed a will at age 89, while in the early stages of Alzheimer's disease.
Annie Doris Wotton ("Mrs. Wotton") died in 2016 at age 95. In 2010, at age 89, Mrs. Wotton executed a will that divided her estate equally between her son John and two of her three grandchildren. Notably, this will entirely excluded her third grandchild, Rhonda. The will was prepared by a lawyer, Mr. Ouimet-McPherson, who met with Mrs. Wotton, assessed her capacity, prepared the documents, and oversaw their execution.
The 2010 will replaced Mrs. Wotton's previous will from 1992, which would have given her entire estate to John.
Following Mrs. Wotton's death, John challenged the will (via his wife, acting as John's litigation guardian) on the grounds that Mrs. Wotton lacked testamentary capacity in 2010. Mrs. Wotton had early stage Alheimer's disease, was very elderly, and a posthumous capacity assessment by Dr. Sarazin determined that there was "reasonable evidence in support of a determination of incapacity when Mrs. Wotton gave instructions to draw up a last will and testament."
Issue 1 - Who bears the onus of proving capacity?
Testamentary capacity is generally presumed (O'Neil v Royal Trust Co). But if a will is prepared under suspicious circumstances, then the onus flips and the party seeking to prove the will must prove the testator had capacity (Vout v Hay).
Maranger J found that in the case at hand, there were suspicious circumstances due to Mrs. Wotton's advanced age, her early stage dementia, and the substantial changes between the 2010 and 1992 wills.
Issue 2 - Did Mrs. Wotton have testamentary capacity?
The test for capacity
The case of Gironda v Gironda sets out the law on determining if someone had testamentary capacity. A court should consider the testator's capacity at the time of giving instructions and executing the will.
The testator must understand the essential elements of making a will, including the extent of their assets, the impact that the distribution will have on those included and excluded, and the testator must be free of delusions (see Banks v Goodfellow).
Application to the facts
Maranger J found that Mrs. Wotton did have testamentary capacity.
Despite her early-stage Alzheimer's disease, Mrs. Wotton managing her daily life and her finances on her own. She was able to discuss her assets and her plan for the new will with her lawyer. She didn't have a perfect recollection of what each of her assets was worth, but she had a general idea.
Mrs. Wotton did not mention to her lawyer that she was excluding one of her grandchildren from the will, but it turned out that Mrs. Wotton and Rhonda had long been estranged over very serious accusations, which explains Mrs. Wotton's behaviour.
While Maranger J accepted the posthumous assessment of Dr. Sarazin, he gave it very little weight on the grounds that retroactive assessments are only weakly reliable.
The Bottom Line
Early stage dementia does not disqualify someone from making a valid will. Whether someone has testatmentary capacity is a question of fact that revolves around whether they understand what they're doing and the impacts it will have on others.