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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.

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."

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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.

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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."

While the deceased in the Hutchinson v. Hutchinson case suffered from dementia and was deemed incapable of executing his final will, others with a history
of mental illness can possess the right mental capacity required to execute theirs.

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"Testamentary capacity is both task-specific and situation-specific," Dr. Shulman explains. "Your capacity to make a will is different than your capacity to manage finances or to drive a car. Each capacity has to be assessed individually and specifically."

The most famous leading authority on testamentary capacity is the judgment in the 1870 matter of Banks v. Goodfellow. John Banks, who executed a will, suffered from a chronic and serious mental disorder. The court decided he was delusional, but capable of distributing his assets.

"You can be delusional and psychologically ill, but if it's not influencing the will, you are still capable," Dr. Shulman says. However, "if you believe one of your children has been stealing from you when that's really a behavioural and psychological symptom of dementia, then that's a delusion that influences the fact that you've cut them out of the will. That will won't be considered valid in law."

Currently, Dr. Shulman is working closely with Toronto estate lawyer Ian Hull, son of Rodney Hull, to research lucid intervals, the notion that an individual can be impaired most of the time, but have periods – good days – when they are lucid and apparently capable of executing a will.

"We are looking at what we call cognitive fluctuation," he explains. "Is there evidence that individuals suffering from dementia, like Alzheimer's disease, have significant fluctuations that might correspond to the legal concept of the lucid interval?"

Hull, who began working in estate litigation in 1992 with his father, reckons the legal theory that someone can have good days and bad days doesn't make sense. "We think the courts may not be right," he believes. "Medical evidence suggests that someone with a serious mental illness can either have bad days or okay days, not good days in which they are lucid enough to execute a will."

Both Hull and Dr. Shulman anticipate more challenges to testamentary capacity in the coming decades due to a number of factors. These include the complexity of modern families, the high prevalence of cognitive impairment and dementia in older adults and, the economic reality that there's disproportionate wealth in the hands of older people while younger people face financial difficulties and depend on being beneficiaries of family estates.

"There's a tremendous transfer of wealth seen every day in court. Not only do we have far more cases, there is far more at stake, which is a recipe for potential litigation," warns Hull. "When I started more than 20 years ago, $1-million was considered high stakes. These days, a typical amount can be anywhere between $5-million to $50-million."

Besides lucid intervals, Dr. Shulman is proposing to conduct ongoing research in areas where there's a medical-legal interface. With his colleague Dr. Mark Sinyor and others at Sunnybrook, he is studying suicide notes and handwritten wills, otherwise known as holographic wills. Dr. Shulman proposes to collaborate with Hull and other legal professionals to understand these issues better and educate both lawyers and physicians on these matters.

"It's an important societal issue and it profoundly affects people's lives," Dr. Shulman says. "Children and spouses are often deeply hurt by changes made under undue influence or by an incapable person. It doesn't mean that wills have to be fair, but these are opportunities to correct those injustices."

Some common psychiatric conditions that can affect capacity and vulnerability to undue influence:

Dementia can affect insight, perception, judgment and impulse control. Mild forms of memory impairment can be associated with suspiciousness or even paranoid delusions.

Alcoholism and alcohol abuse can have both acute and chronic effects on cognition, judgment and behaviour.

Mood Disorders
Mood disorders, including depression and bipolar disorder, may produce cognitive distortions (delusions), compromise judgment and cause irritability or impulsiveness.

Paranoid delusions may be secondary to a number of clinical syndromes, including schizophrenia, delusional disorders and other forms of neurological disease, such as dementia, delirium, acquired brain injury and other brain lesions.

This content was produced by The Globe and Mail's advertising department, in consultation with Sunnybrook. The Globe's editorial department was not involved in its creation.

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