Challenging a Will Based on Incapacity

David A. Brooker, litigation lawyer with the Toronto firm of Steinberg, Morton, Hope & Israel LLP, explains challenging a will based on incapacity.

Often, when the issue on a will challenge is whether or not the testator had mental capacity ( that is, whether the testator to understand the terms of the will that’s being put forward, at the time it was signed) you’re dealing with a legal file that consists of many documents. There may be a large number medical records of the testator, especially if he or she had been ill for a long time before death or if he or she had been under hospital care or the care of several medical professionals. I need to locate and gather all of those documents to see what was written about the testator. I need to read doctors’ and nurses’ notes, test results, etc. Often, if the will was done while the person was in the hospital, I need to closely chronicle what happened during that time. Often we engage a forensic doctor to write a report saying whether or not, based on the medical records and observations of others who were with the testator, the person had capacity at that time the will was signed.

This can be an expensive and time-consuming process. If someone was elderly when they died, they may have a large number of medical records from many sources that need to be found. Their bank and investment records need to be reviewed as well. In total, these records can fill several boxes and each document may require close examination. There have been cases where thousands of pages of documents have been accumulated, and among them there may be a couple of lines or a short note somebody made in a medical chart or other record that turns the case one way or another.

If you, or someone you care about, is dealing with litigation law issues in the Toronto, Ontario Region, contact Steinberg, Morton, Hope & Israel LLP for a consultation.

This article is taken from a August 15, 2011 interview with David A. Brooker, litigation Lawyer with Steinberg Morton, Hope & Israel LLP, a Toronto Litigation Law Firm and is not intended as, nor should be taken to be, legal advice or opinion. This article and website provide general information on legal and related matters and should not be relied upon as legal advice. If you require legal advice, you should consult and retain qualified legal professionals in your area to advise you about your particular situation and the law in your jurisdiction as laws vary from province to province, state to state and country to country.