Dr. Richard Shulman

The applicant son brought a motion within a guardianship application to determine his 91-year-old father's capacity to instruct counsel, and to enforce previous orders regarding financial disclosure and access visits.

The father, who suffers from aphasia, had been assessed by multiple capacity assessors.

The court found the father had capacity to instruct counsel regarding his personal care and residence, but lacked capacity to instruct on property matters due to his inability to understand a disputed $280,000 mortgage.

The court directed the Public Guardian and Trustee to arrange section 3 counsel for the father, ordered the respondent siblings to provide the long-overdue accounting, and enforced the applicant's access visits, awarding substantial indemnity costs against the respondent siblings for their reprehensible conduct in delaying the proceedings.

The applicant challenged her mother's 2015 will, alleging lack of knowledge and approval, lack of testamentary capacity, and suspicious circumstances.

The 2015 will divided the estate equally among the three children, whereas a previous 2013 will had left the majority of the estate to the applicant.

The court found no suspicious circumstances, preferring the evidence of the drafting solicitor and the deceased's family doctor over the retrospective analysis of the applicant's expert geriatric psychiatrist.

The court concluded the deceased had the necessary testamentary capacity and dismissed the application.

Two competing applications were brought by family members.

The applicant daughter applied for guardianship over her 90-year-old mother and challenged the validity of her mother's new will, powers of attorney, and the transfer of her home to her other daughter, alleging undue influence and lack of capacity.

The mother applied to remove the applicant daughter as a joint account holder on her investment account.

The applicant daughter moved to consolidate the applications into an action requiring a trial.

The court found that the mother's capacity was the controlling issue and could be decided on the application record without a trial.

Relying on expert psychiatric evidence and the mother's own testimony, the court concluded that the mother had the requisite capacity to manage her property and personal care, grant powers of attorney, make a will, and make an inter vivos gift.

Because the mother had capacity and the impugned instruments were executory, the court declined to direct a trial on the issue of undue influence.

The applicant daughter's application was dismissed, and the mother's application to remove the applicant daughter from the joint account was granted.

The applicants, estate trustees of the late Ellen Kates, sought to propound codicils executed in August 2011.

The objectors challenged the codicils on the grounds of lack of testamentary capacity and undue influence, citing the testator's diagnosis of moderate Alzheimer's disease.

The court found that despite the cognitive impairment, the testator understood the nature and effect of the codicils, the extent of her property, and the claims of those excluded.

The court also found no evidence of coercion or fraud amounting to undue influence.

The codicils were admitted to probate.