Winnipeg Free Press - PRINT EDITION

A will by a fading mind can still stand

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Sally Adams was 87 years old when she was diagnosed with a mental disorder causing forgetfulness and paranoia. A court application was started to take over her financial affairs.

She called a lawyer and told him she wanted a new will. They met for two hours. She told him about her siblings and nieces and nephews. While she forgot some of their names, she also remembered many. She had 30 nieces and nephews to account for. The lawyer asked about what she owned. She was able to answer in general terms, but not in perfect detail. The lawyer felt satisfied she had a rough working knowledge of the assets that would be given away at her death. She told him how those assets were to be distributed among her family under her will.

She met with the lawyer again the next day. He had prepared a will for her, and they spent 11/2 hours going over it. She corrected a spelling error. The lawyer was satisfied she had mental capacity and they signed the will.

Her mental powers slipped steadily over the years that followed. She died eight years after signing the will.

One or two family members were unhappy with the will. They stood to inherit more if the will was overturned. They took her estate to court.

A collection of doctors testified. They believed she was unable to make a valid will at the time it was signed. They knew all about the type of mental condition she had. There was something they did not know: They did not know how she was functioning on April 28, 1983, when the will was signed. They were not in the room during the discussions with the lawyer. They did not hear her answers to the questions the lawyer asked.

The lawyer also testified. His notes were good. He had written out a family tree and an asset list based on her answers. While she was slipping, much of the detail was relatively accurate.

The court said the will was valid. The lawyer's evidence was preferred over the evidence of the doctors. In fairness to the doctors, they had been busy treating her for her mental condition. They were not asked to assess her capacity to make a will.

Sally's story is instructive for a variety of reasons. First, a person can be mentally ill or losing their memory and still make a valid will. They simply have to retain some basic understanding. They need to know what they own, who in their world would naturally expect to receive it and what a will document does.

Second, a doctor's opinion is only as good as the information they have. If they are not specifically asked to assess capacity, it becomes difficult for them to do so. It is even more difficult if they are asked to make a guess eight years after the fact.

Third, a lawyer has to be very careful. A complete file should be made with each will. It has to contain the information collected from the client. It has to be kept for decades. If the will is challenged, the file has to be available. It supplements the lawyer's memory. For that reason, wills are becoming more and more expensive. It takes time to ask the questions and record the results. People may find the price for wills is on the rise. It simply means lawyers are gradually doing a better job.

Sally's story is a real one. The details were taken from the published decision of the court. The names have been changed.

 

John E.S. Poyser is a lawyer with Tradition Law LLP. Contact him at 204-947-6802 or jpoyser@traditionlaw.ca, or visit www.traditionlaw.ca

Republished from the Winnipeg Free Press print edition December 18, 2013 B6

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