Capacity Law

Total 143 Posts

Buffy the Vampire (Slayer Rule)

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Halloween is right around the corner, so today’s blog post is taking an ominous turn. Informal Reader Poll: What’s scarier? a) A horror movie that’s been remade three times b) Having to remake a client’s will for the third time Now to the fun stuff….. There’s a general principle in law and public policy that no advantage may be gained from one’s own wrongdoing. Some relevant examples are: The Slayer….

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Capacity Law, Contested wills, Estate Litigation, Family Conflict

Undue Influence by “Unwitting Proxy”

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Undue influence results in benefits to a beneficiary/donee which would not have occurred except for the undue influence imposed by the beneficiary/donee upon the testator/donor. Undue influence can be conceptualized into two distinct types: (1) “actual” undue influence and (2) “presumed” undue influence. Actual undue influence is concerned with coercive or deceptive behaviour. As explained by Lord Justice Lindley in the seminal case of Allcard v. Skinner,[i] actual undue influence….

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Capacity Law, Elder Law, Guardianship, Power of Attorney, Powers Of Attorney and Guardianship Disputes, Resulting Trust, Testamentary Capacity, Trustee, Trustee Disputes, Undue influence

When More Help is Needed: Moving Seniors with Dementia to Care Facilities

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Section 4(1) of the Health Care Consent Act (HCCA) sets out a two-part test for determining whether a person has the capacity to consent to medical treatment, to be admitted to a care facility, or to receive a personal assistive service/device: Is the person able to understand information relevant to making the decision; and Is the person able to appreciate the consequences of a decision or lack of a decision?….

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Capacity Law, Elder Care, Elder Law, Geriatric Care Management, Guardianship, Power of Attorney

Court of Appeal Weighs In On Alcoholism and Testamentary Capacity

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In the recent decision of Dujardin v. Dujardin, 2018 ONCA 597, the Court of Appeal for Ontario considered the validity of wills executed by a testator suffering from chronic alcoholism. Background: Jack and Noel Dujardin (“Jack” and “Noel”) were brothers who jointly owned a farm property that had been in their family since 1958. The brothers lived on the farm together and ran the farming business as a partnership. In….

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Capacity Law, Wills

Space Oddity: Why One of the Original Moonwalkers is Having to Sue his Children

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This blog was written by Ronald Neal, student-at-law at de VRIES LITIGATION LLP. Even those with the “right stuff” are not immune to elder abuse.  Such is the apparent case with Buzz Aldrin, a retired astronaut, lunar module pilot, and engineer who is now finding himself in the midst of a legal battle that may yet bring as many challenges and difficulty to him in his twilight years as his….

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Capacity Law, Elder Care, Elder Law

Medical Assistance in Dying (MAiD) and Undue Influence

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In 2015, the Supreme Court of Canada held that the ban on Medical Assistance in Dying (MAiD) was unconstitutional (for a summary of the decision, click here). However, MAiD is not available to all persons; to qualify, a person requesting MAiD must have a grievous and irremediable medical condition including an illness, disease or disability. In its seminal decision, Carter v. Canada (Attorney General), 2015 SCC 5, the Supreme Court of….

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Capacity Law, Disability, Elder Care, Elder Law, Geriatric Care Management, In the News, Testamentary Capacity, Undue influence
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