Last month, WEL partner’s own John Poyser, along with Dr. Arlin Pachet and Ryan Gorlick were informed that they will be receiving the Widdifield Prize for Legal Writing for their article “The Impact of Alcoholism on Testamentary Capacity”. Many congratulations to John, Arlin and Ryan for an excellent article.

The article is split into two broad sections, the first section primarily dealing with the legal aspects of alcohol and testamentary capacity and the second section the medical perspective. The legal analysis includes a discussion of Banks v. Goodfellow, the seminal case for determinations of testamentary capacity in Canada as well as the English case of Sharp v. Adam and disorders of the mind. What follows is a discussion of several cases involving alcohol and testamentary capacity including cases dealing with active drinking, cases dealing with alcohol induced dementia and cases dealing with the impact of delirium during withdrawal of alcohol.

The medical analysis builds on the legal framework and includes several aspects of alcohol on testamentary capacity. This includes the effect of alcohol on the bloodstream, persistent conditions and brain damage, the impact of alcohol withdrawal and delirium and alcohol as potential control mechanism.

Lastly, the article provides a summary of the conclusions reached and recommendations for estate litigators and planners. Some of these findings and helpful recommendations are highlighted below.

Wills made while actively drinking

Generally speaking, a litigant seeking to challenge a will is going to need more than the fact that the Will-maker was drinking. A drink or two will generally be insufficient evidence to invalidate a Will. However, this may change where evidence is available of ‘significant inebriation’. The authors highlight that:

Significant levels of inebriation can create a mental disorganization sufficient to interfere with the ability to grasp the first three elements from Banks v. Goodfellow (nature and effect of will, extent of assets, and natural objects of bounty).

From an evidential standpoint, focus should be on the particular drinking session in question that was contemporaneous with the execution of the Will. Consideration should also be given to the testator’s drinking pattern. What was the impact of their inebriation? Did they become mean or aggressive? It is also important to look for a combination of drunkenness and disease. Was there some other persistent disorder that might have impacted the testator’s capacity?

Where testamentary capacity is being challenged in the context of alcohol consumption, there are important questions for litigators to ask. Specific questions include what the circumstances were around the time the Will was executed? Was the testator drinking on an empty stomach? Had they slept? What were their credit card or bank withdrawals at the time? Broader questions can be directed towards the testator’s friends and family. Did the testator commonly display any character changes when drinking? Were they irrational or quick to anger? Was the testator a different person when drunk compared to when sober?

Wills made against background of Persistent Alcohol Related conditions

A party attacking a Will should examine the broader possibility that the testator suffered from an underlying condition such as brain damage, Korsakoff’s Disease (a memory disorder associated with alcoholism), alcohol-related dementia, liver disease, or other subsisting conditions that could impact their capacity. The reasoning being that a challenge can be based not on the testator suffering from a ‘disease of the mind’ but rather the mind itself being persistently flawed over the weeks before and after the Will was executed.

In this regard, a particular medical diagnosis can be important. First, because different disorders, coupled with alcohol abuse can have variable impacts, with some interfering more or less with the cognitive functions essential to make a Will. Second, timing is important; medical evidence is rarely contemporaneous with the execution of the Will. Therefore, a retrospective diagnosis can be pivotal in focusing expert evidence in a way which will be useful to the court. Third, some dementias associated with alcohol abuse can and will impact executive function on a more pronounced basis than impact on memory.

Importantly, “all of those considerations may fade from importance when the will is made with the assistance of a lawyer who follows good process. That means collecting and recording contemporaneous evidence of the actual performance of the will-maker during the will-making process”.

Undue influence

The article highlights how alcohol can be used as a form of coercion and undue influence if a predator is able to control the flow of alcohol to a testator who is in the grips of withdrawal, thereby overpowering their autonomy and free will. Withdrawal can be an extremely distressing process that often requires medical intervention. This process can cause delirium which may significantly diminish one’s capacity further and make them more susceptible to undue influence.

A distinction is made between this form of abuse and a scenario where an enabler supplies the testator with a steady supply of alcohol or provides them with means to support an alcoholic lifestyle. This form of behaviour is generally insufficient to overturn a Will given “enabling is not the same as coercion”. Accordingly, a litigator challenging the validity of a Will or other testamentary instrument should approach the two scenarios differently.

Concluding Comments

“The Impact of Alcoholism on Testamentary Capacity” is a superb and informative article for litigators and estate planners on alcohol’s impact on testamentary capacity. It also provides lawyers with valuable insight into how medical professionals approach and examine testamentary capacity, which is a medical-legal determination.

For those interested, their article can be found: (2023), E.T.P.J. Vol. 42 pg. 330