The medical evidence tendered to support a will (that defeats one child in favour of another), usually consists of a doctor’s letter. Anyone who has dealt with doctor’s letters as a form of evidence knows how deficient they tend to be.
Doctors use their hands for more important things than writing or typing. Force a pen into their hand and the outcome is often terse and ambiguous. Such was the doctor’s evidence in Banton v. Banton, [1998] O.J. No. 3528, where, although the doctor said that the testator was capable as to property, that medical evidence was not sufficient to support a change of will which defeated the sons and daughters as beneficiaries.
Cullity J. (para 27) went back to the English Queens Bench (1870) to re-state the three elements required to prove testamentary capacity: the testator shall understand the nature of the act he is performing; and he shall understand the extent of the property which he is disposing.
The third element is the factor that most medical letters from doctors don’t speak to: that the testator shall not be afflicted with any disorder of the mind which shall have the effect of poisoning his affections, pervert his sense of right; make him do something he would not do if he was of sound mind.
This is the element which doctor’s letters are mostly silent on. Even in Banton, (para 36) where one doctor met with the testator for 1 hour, the other doctor for 5 hours with 14 more hours on the report, the medical evidence was not sufficient to meet the third factor.
Although these Banton medical opinions effectively supported the first two factors of testamentary capacity, the actual medical reports when forensically assessed by Cuillity J to show that the reports uniformly present evidence of irrational alienation from children. In other words, the medical reports, particularly the report requisitioned by the court itself, without specifically saying so: strongly supported Cullity J’s finding that factor 3 was not met.
Cullity J’s roadmap shows the way to demonstrate factor 3 incapacity using the same medical evidence that otherwise supports factor 1 and factor 2 capacity.
