Doctor's Capacity Assessments in a British Columbia Estate Dispute

You may be holding a doctor's note, a clinic record or a formal capacity assessment and wondering whether it settles a dispute over a will. It is natural to want a document that answers the question.

In British Columbia the court decides capacity, and a medical opinion is one part of the evidence. This article explains how capacity is decided, how the burden of proof works, and how to organize what you have. It does not rank doctors against other witnesses, because that depends on the facts of each case.

This article covers the law of British Columbia.

A doctor's opinion is evidence, not the legal test

Under WESA s. 36, a will-maker must be mentally capable, but the section does not define the test. The test comes from case law, which British Columbia courts apply together with s. 36. Banks v Goodfellow (1870) is described as the leading authority.

A formal challenge is an application to the Supreme Court for an order proving the will in solemn form under Rule 25-15, and that is where capacity, undue influence and knowledge-and-approval questions are decided. A doctor's note or assessment may be placed before the court as evidence, but the court makes the decision. How much weight it receives, compared with the accounts of family, friends or signing witnesses, depends on the circumstances and is worth discussing with a lawyer.

Burden and standard of proof

In Vout v. Hay, the Supreme Court of Canada held that where suspicious circumstances relate to mental capacity, the person propounding the will reassumes the legal burden of establishing testamentary capacity. Suspicious circumstances do not raise the standard of proof: the evidence is scrutinized in accordance with the gravity of the suspicion, and the standard remains the balance of probabilities.

This matters for how you use a medical document. If you are defending a will, evidence about capacity may need to carry the burden. If you are challenging one, the document may support a claim that suspicious circumstances exist, though suspicion alone does no more than rebut the presumption of capacity and of knowledge and approval.

Other evidence that often matters

A single document rarely tells the whole story. Evidence that people commonly gather includes the following.

• Medical records and any assessment, with dates showing how close they were to the signing.
• Accounts from people who saw the will-maker regularly, such as relatives, friends, neighbours and caregivers.
• Evidence from the signing witnesses. Signing witnesses must be 19 or older, and they are key evidence in disputes about the signing.
• The original will and related documents. The court may order a person with control or possession of certain documents or property to produce and bring them to court.

If the concern is undue influence rather than capacity, a different process applies. The challenger must show the other person was in a position of potential dependence or domination, and only then does the onus move to the person defending the will.

Who can take part and how

A person who receives notice of a probate application may oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10. Any person interested in the estate may require the named executor to accept or renounce probate, or explain why administration should not be granted.

A beneficiary, an intestate successor or a person who may commence a wills variation claim is a specified person. With leave of the court, a specified person may commence or defend proceedings in the name of the estate. A person with an interest in the estate may also apply to remove or pass over a personal representative.

What to do next

• Gather every medical document you hold or can lawfully obtain, and note the date and author of each.
• List people who dealt with the will-maker around the time of signing and what each one observed.
• Check whether a probate application or grant exists. After a grant, the personal representative must not distribute the estate within 210 days, except by court order.
• Keep a wills variation claim in mind as a separate route. It must be commenced within 180 days from the date the grant is issued.
• Ask a lawyer which limitation period applies to a validity challenge. The basic period is 2 years from discovery, but how it applies here depends on the facts.

Frequently asked questions