Originally published in our June 2017 Newsletter

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In the case of Coughlan Re, 2003 PESCTD 64 (CanLII), http://canlii.ca/t/5660 , a daughter and the Propounder of her father’s Will, sufficiently established through expert evidence and the evidence of the drafting solicitor, that her father had testamentary capacity. Her father was 90 years old at the time he executed his Will and there was some question whether he suffered from Alzheimer’s disease or not, along with age appropriate memory losses.

Relying on the evidence of the drafting solicitor and two expert witnesses (both psychiatrists) who all opined that the testator had the requisite capacity to execute a Will, Justice Cheverie concluded that the evidence supported the finding that the testator was sufficiently clear in his understanding and memory to know, on his own, and in a general way the nature and extent of his property. He may have had “some details mixed up, but he generally knew the nature and extent of his property. He knew he had some savings; he knew he had a pension; he knew he had an interest in some real estate.”[1] He also knew he had three children and that he had grandchildren.

Notably, the drafting solicitor “went to great lengths” to determine whether the testator was sufficiently clear in his understanding and memory to make the testamentary provisions provided for in his Will. Two psychiatrists were engaged to offer their professional opinions as to his ability to make testamentary provisions. Justice Cheverie concluded “certainly the weight of expert opinion in this case supports the conclusion that he had the requisite testamentary capacity, and I so find.”[2]

On the role of the drafting solicitor, Justice Cheverie commented:

I wish to comment on the process and actions engaged by Mr. Mitchell [the drafting solicitor] in his dealings with John James Coughlan [the testator]. I was impressed by the steps which he took to satisfy himself as to Coughlan’s capacity to make a will and the manner in which he approached the topic from a professional and common sense approach. Some of the inquiries he made of Coughlan appear light and superficial. For example, the baseball references.[3] But in the end, the answers to those questions were very telling. Mitchell made sure Mary Coughlan [the daughter] was not present when he took his instructions, and was careful to determine Coughlan’s knowledge of the extent of his estate, his potential beneficiaries, and his reasons for his dispositions. Further, Mitchell, from his experience, had a sense this will would be contested. It is for that reason he engaged the psychiatrists to comment on what he felt was the disposing mind of John James Coughlan. Mitchell indeed made detailed notes of his meetings with Coughlan and his observations from those meetings and they are now part of the record at this trial. Suffice it to say that Mitchell was not going to rely on his memory alone if this matter were contested – he had his notes.[emphasis added] [4]

Upon reviewing the capacity to revoke a CPOAP alongside testamentary capacity, Justice Cheverie, made the following additional observations:

• that the drafting solicitor spent 15-20 minutes questioning the testator and assessing him for capacity to revoke the POA;[5]
• the drafting solicitor concluded he was lucid, focused, and wanted to regain control of his assets. He discussed the existing POA and the fact it stated to be irrevocable;[6]
• the solicitor also made sure he had knowledge of his assets and that he reviewed and understood the revocation when he signed it;[7]
• the solicitor had also arranged the testator to meet with two psychiatrists who were engaged to assess both the testator’s ability to revoke a POA and his testamentary capacity; and
• one of the psychiatrists who assessed Coughlan testified that “her opinion with respect to the ability of Coughlan to revoke a Power of Attorney is that he has to understand what it is in order to revoke it”.[8]

Some lawyers, like in Coughlan, recommend their clients who are older adults or who appear to have a mental disability to undergo a capacity assessment for the purposes of planning protection. Ultimately, the final arbiter of capacity will be a judge who will consider any assessments as evidence. Indeed, it is the responsibility of the drafting solicitor to assess the client’s capacity to grant or revoke a power of attorney or health care directive appointing a proxy, when asked to prepare such documentation for a client.[9]  This does not mean to suggest that a solicitor in discharging this duty of care may not recommend, encourage or suggest a formal assessment by an assessor in cases where litigation is likely, or in borderline cases, all in an effort to protect the autonomy of the individual and the decision made.

For further information and assistance access our WEL CHECKLISTS here:

http://welpartners.com/resources/practicechecklists

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[1] Coughlan Re 2003 PESCTD 64 (CanLII) at para. 129

[2] Coughlan, Re 2003 PESCTD 64 (CanLII) at para.130.

[3] The lawyer asked about the testator’s interest in baseball and specifically the Mark McGuire home run race. He questioned the testator about how many home runs Mark McGuire had at the time and the testator was correct: 62.

[4] Coughlan, Re 2003 PESCTD 64 (CanLII) at para. 132.

[5] Coughlan, Re 2003 PESCTD 64 at para. 88

[6] Coughlan, Re 2003 PESCTD 64 at para. 88

[7] Coughlan, Re 2003 PESCT 64 (CanLII) at para. 90.

[8] Coughlan Re 2003 PESCTD (CanLII) at para. 117.

[9] Egli v. Egli, 2005 BCCA 627 (CanLII)

In this case, the trial judge placed greater importance on the evidence of the drafting solicitor than that of a physician in finding that Mr. Egli had the requisite capacity to execute the POA in question.