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When family members contest a will, who interprets what the deceased really meant? How one geriatric psychiatrist is helping the courts decide (Illustration by: Steve Adams)

When family members contest a will, who interprets what the deceased really meant? How one geriatric psychiatrist is helping the courts decide

(Illustration by: Steve Adams)

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When family members contest a will, who interprets what the deceased really meant? How one geriatric psychiatrist is helping the courts decide.

Minutes before he leaps from a balcony to his death, Troy Phelan faces a mob of lawyers and psychiatrists gathered in his office to determine if he’s in his right mind.

“I’m sitting here to prove to the world that I am of sufficient mental capacity to make a new will,” the eccentric elderly billionaire in John Grisham’s legal thriller, The Testament, reckons. “Once it is proved, the disposition of my assets cannot be questioned.” Looking around the conference table, he muses, “They expect me to be somewhat loony, but I’m about to eat them for lunch.”

After Phelan receives a clean bill for his soundness of mind, he decides to leave one final – unexpected – handwritten will, bequeathing his vast fortune to an illegitimate daughter instead of his six children by three marriages. This triggers his family to contest the new will. Although he was examined by the country’s top medical experts, Phelan’s children and ex-wives argue he was lacking sanity at the time of the new will.

Was he? Did he lose sanity in a matter of minutes? These are questions Dr. Kenneth Shulman is regularly called upon to give his expert opinion in the midst of family dramas unfolding before the courts.

A geriatric psychiatrist and chief of Sunnybrook’s Brain Sciences Program, Dr. Shulman was first enlisted 30 years ago by the late prominent estate lawyer Rodney Hull to assess testamentary capacity, a legal test that determines whether or not an individual is capable of executing a will. Since then, Dr. Shulman has been qualified as an expert witness. He has testified in two cases in Alberta and seven in Ontario, and assessed more than 100 cases across Canada and worldwide.

“This is one of the most interesting interfaces between the medical and legal professions,” Dr. Shulman says. “The issues usually revolve around family dynamics, typically family conflict and human greed in the context of cognitive disorders and frailty in older adults who have executed a will. My role is to help the court make an informed decision.”

While people are presumed capable of executing a will in the eyes of the law, when capacity is challenged based on suspicious circumstances or reasonable grounds, the court will require input from a medical or psychological expert to identify whether there are psychiatric or cognitive disorders that might have affected the individual’s mental capacity.

“The most common scenario is older people who may or may not be suffering from some form of cognitive impairment,” Dr. Shulman explains. “They may lack capacity and be vulnerable to what the court calls ‘undue influence.’ If somebody is frail or cognitively impaired, they may be vulnerable to being influenced by somebody else to change their will.”

In the 2006 matter of Hutchinson v. Hutchinson, the Ontario Superior Court declared a will invalid after considering evidence that seriously questioned the capacity of the deceased, who died in 2002 at the age of 86.


Illustration By: Steve Adams

The plaintiffs – three of his four children – testified that their father suffered from dementia as early as 1995 and wasn’t aware of what was happening around him. In 1998, he began living at his home with the defendants, his youngest son and the son’s wife. Soon after, the father transferred his home and investment account to his youngest son, and made a new will that left his entire estate to him. In a prior will executed in 1992, the deceased divided his estate equally amongst his four children.

Based on the deceased’s failing health and evidence that suggested the defendants took steps to convince him that his other children were attempting to take his money, the court determined there was a presumption of undue influence. It found that the defendants had failed to prove that the deceased had testamentary capacity when executing his new will. As a result, the transfer of assets was brought to a halt.

In giving retrospective opinion about a person who has died, Dr. Shulman says his job is to garner as much information as possible from medical records, legal documents and other examinations of individuals who had knowledge of the person.

“Although that seems very challenging, if you have enough information, a medical expert can often form a reasonable opinion,” he explains. “What’s happening more often is that because lawyers are increasingly aware that wills may be challenged, particularly under conflict-filled circumstances, they will ask a medical expert to do a contemporaneous assessment while the individual is alive.” Dr. Shulman adds that kind of opinion would be far more difficult to challenge, “but  a good retrospective opinion is often better than a poor contemporaneous opinion.”

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