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Digest of the Week | Testamentary Capacity and Suspicious Circumstances

Testamentary Capacity and Suspicious Circumstances


Devore-Thompson v. Poulain | 2017 BCSC 1289 | British Columbia Supreme Court


Estates -- Will challenges -- Testamentary capacity -- Suspicious circumstances -- Lucidity of testator


Deceased was diagnosed with Alzheimer’s disease in 2005 and passed away in 2013 -- Deceased was unwilling and ultimately unable to accept implications of diagnosis of Alzheimer’s disease -- In 2009, deceased executed will and in 2010, deceased married husband -- Plaintiff was deceased’s niece -- Plaintiff brought action to challenge validity of will and marriage on grounds that deceased did not have capacity -- Action allowed -- Deceased did not have capacity to enter marriage and lacked testamentary capacity to execute will -- There was too much credible evidence to contrary to accept husband’s story about living with deceased -- There were numerous material inconsistencies in husband’s evidence, not only as between his evidence and that of other witnesses regarding deceased’s health, but also as between his pleadings, his evidence at trial, and his evidence on examination for discovery -- Given deceased’s state of dementia, deceased could not know even most basic meaning of marriage or understand any of its implications at time of marriage -- Circumstances surrounding 2009 was suspicious, such as fact that husband’s handwriting on 2007 will was basis for instructions was suspicious, when combined with nature of purported instructions and deceased’s known medical diagnosis -- There was absence of evidence from family witnesses that deceased had periods of lucidity or normal functioning during this time.
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