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Lack of Capacity

Dementia and Mental Capacity to Leave Estate to Caregiver

By Candace Cho

Can family members argue that an elderly relative with dementia lacked the mental capacity to change his will to make his younger female caregiver the only beneficiary?

In Elder Estate v. Bradshaw, 2015 BCSC 1266, the court considered that question.

Diagnosis of dementia, increasing dependency on caregiver

Mr. Elder, who was 80 when he died in 2011, never married and had no children. His original will, prepared in 1987, left his estate to his sister, and if she died before him, to her three sons (Mr. Elder’s nephews) in equal shares. In 2006, Kate O’Brien, became Mr. Elder’s housekeeper. He had several health conditions, and over time, Ms. O’Brien gradually became his caregiver. Ms. O’Brien was 25 years younger than Mr. Elder.

In 2008, Mr. Elder was diagnosed with dementia. He received treatment and was monitored by a Geriatric Assessment Team from that time on. His mental status remained relatively stable in the years until his death. In April 2011 Mr. Elder prepared a new will that left his entire estate to Ms. O’Brien if she survived him and, if not, to his nephews. Mr. Elder died suddenly in July 2011. The nephews, who had not seen their uncle in over 15 years, were suspicious of the circumstances which resulted in them being disinherited in favour of the younger housekeeper/caregiver. They challenged the validity of the new will prepared in 2011.

What the court decided

The court agreed that the diagnosis of dementia raised suspicions regarding Mr. Elder’s mental capacity to prepare the new will (known as “testamentary capacity” in estate litigation). However, after examining all of the circumstances, the court was satisfied that Mr. Elder understood the extent of the property he was disposing of by will and was capable of making financial decisions. The court was also satisfied that Ms. O’Brien did not pressure or influence Mr. Elder in any way in relation to the change in his will.

Facts important to the court decision

  • There was ample evidence, including that of Mr. Elder’s home support worker, his neighbours, his financial service advisor, his realtor, his doctors, and his solicitor to establish that Mr. Elder was “with it” and had a clear understanding of what he wanted to do with his property. His mild-to-moderate dementia was relatively stable.
  • Ms. O’Brien did not play any role in conveying Mr. Elder’s wishes to the solicitor, or in influencing him to have a new will prepared. Mr. Elder actually rejected her advice that he did not need to change his will. Although Ms. O’Brien arranged the appointment with a solicitor on Mr. Elder’s behalf, and attended with him while he initially provided his instructions, she was not aware of what Mr. Elder’s will instructions would be prior to the appointment. The solicitor was also careful to confirm Mr. Elder’s instructions in Ms. O’Brien’s absence.
  • Ms. O’Brien had no special relationship of influence in the area of managing Mr. Elder’s affairs or giving him advice. Further, while Mr. Elder was becoming more dependent upon Ms. O’Brien as time passed, he was not completely dependent upon her. Institutional service providers and home support workers were routinely involved in his care.
  • Ms. O’Brien’s relationship with Mr. Elder and the potential for undue influence was scrutinized frequently during his lifetime by his home support workers and doctors, and to a lesser extent, by Mr. Elder’s solicitor, realtor, and financial service advisor. All these witnesses were specifically looking for evidence of undue influence and saw none.
  • Mr. Elder was estranged from his nephews, who were his only next-of-kin. Conversely, there was evidence that Ms. O’Brien’s relationship with Mr. Elder was one of sincere care and concern. In light of the quality of the respective relationships, Mr. Elder’s decision to leave his property to Ms. O’Brien instead of his nephews was not unreasonable.

Take home point regarding dementia and mental capacity

Dementia may be a red flag, as may be the decision to leave one’s estate to someone who is not next of kin. However, the issue of mental capacity (known as “testamentary capacity” in estate litigation) ultimately depends on a consideration of all of the facts and the circumstances surrounding the preparation of a will.