The Capacity Dispute

Estate Litigation Lawyer

Financial abuse of the vulnerable is a familiar subject for estate litigation lawyers and the courts. There are many cases where ‘friends’ obtain access to another’s assets through coercion or deception. These transactions, which may later be deemed as deceptive or predatory, are often subtle in nature, and may start out as seemingly legitimate efforts to help a vulnerable testator plan the division of their estate. The perpetrators of such deception might even unconsciously persuade themselves that their actions are justifiable, believing that they know best what the testator (the will-maker) would want.

Consider the following scenario: Trevor’s wife died giving birth to Emilie, and because Trevor was young and felt incapable of providing an ideal home for his newborn daughter, he asked his married elder sister to raise her as she would her own. As Emilie grew older, she became so rooted in the family that Trevor asked his sister to keep her as long as possible. Emilie later married and had children of her own.

Trevor neither remarried nor fathered more children and he vowed to his sister that all the wealth he accumulated in his lifetime would be transferred to Emilie upon his death. As Trevor matured, he was diagnosed with progressive dementia. During this time, he had a serious girlfriend. As the dementia worsened, Trevor’s girlfriend persuaded him to sign co-ownerships to his properties with her. She also began to paint Emilie in an unfavourable light, claiming that Emilie was mismanaging the money that Trevor would give her. She went as far as convincing him to exclude Emilie from his Will, claiming that Emilie had stopped visiting him altogether, safe in the knowledge that Trevor would not recall any details of Emilie’s visits or their relationship. Trevor finally passed away leaving the entirety of his estate to his girlfriend, completely excluding Emilie and breaking the promise he made to his sister.

When Emilie learned of the terms of the Will, she was shocked to discover that Trevor had changed his Will a few weeks before he passed away and had left his entire estate to his girlfriend on the basis that Emilie had abandoned him. Emilie knew this was untrue. She had always been, and remained, very close to her father. She visited him in the hospital every week to take him for walks, clean him and do his laundry. It was clear that Trevor’s condition had deteriorated rapidly enough that he could not tell fact from fiction. Emilie was advised by her estate litigation lawyer to challenge the Will on grounds of testamentary incapacity.

When a court rules on a case such as the example above, priority tends to be given to the person who is deemed to have a ‘moral claim’ to the testator’s assets. Children and spouses of a testator in the eyes of the law have a higher ‘moral claim’ to a testator’s assets than anyone else. Therefore, if a person owed such a ‘moral claim’ is drastically or suspiciously left out of a Will in favour of another beneficiary, the courts will require evidence that the testator had full knowledge and memory of the excluded person when they decided on the terms of the Will. If a testator held obviously inaccurate beliefs about the disinherited child, such as Trevor’s inaccurate beliefs about Emilie, those beliefs cannot be a sufficient basis for her/his disinheritance. So, in this example, it is likely that the court would rule in Emilie’s favour and that she would be awarded a percentage of Trevor’s estate by way of a court-ordered variation of the terms of his Will.

When deciding the terms of a Will, a testator’s mental health is more important than their physical health. If they did not understand what they were agreeing to at the time the Will was made, the Will cannot stand as a valid representation of their wishes. The Wills, Estates and Succession Act of British Columbia provides technical guidelines for the courts to follow when ruling on a Will dispute.

  1. Did the testator have a competent mental capacity? Was the testator aware of what they were doing when they agreed to the terms of the Will?
  2. Did the testator suffer from a mental disorder that would affect their mental capacity?
  3. Did the testator create the Will willingly and not under any undue pressure, such as an elderly or ailing testator who may be heavily dependent upon another person for care or assistance.

If you believe you might have been unfairly left out of a Will or that the testator did not have testamentary capacity when they made their Will, contact Helpforme for a free consultation. Helpforme is the Personal Legal Services division of Hammerberg Lawyers LLP in Vancouver, BC. Helpforme Estate Litigation lawyers are highly-skilled negotiators as well as seasoned trial lawyers. Their goal is to help people through a difficult and emotional dispute, then lead them through a resolution process that restores their sense of justice.

Helpforme’s Estate Litigation Team can handle your complex cases and inheritance disputes with a uniquely personal and empathetic client approach. Helpforme’s goal is to find an amicable solution among disagreeing family members that, if desired, unites divided families. While they are vigorous litigators, they also believe that many of the best solutions can be found outside a courtroom.

As for legal fees, Helpforme takes a personalized approach depending on each client’s situation and where possible, takes claims on a contingency basis. Helpforme’s estate litigation group focuses on assisting people in circumstances that are often too complex to resolve on their own, while keeping their best interests in mind and adding value every step of the way.

Helpforme’s expertise covers: Wills and Estate Planning; Succession Planning; Trusts and Trust Litigation; Estate Probate and Administration; Committees and Adult Guardians; Disinherited Children and Spouses; Undue Influence and Incapacity; and Claims against Executors and Trustees.