Dr. Sadavoy

In a family law proceeding, the parties disputed whether the applicant, who suffers from mild dementia and requires a litigation guardian, had the testimonial competence to testify at trial.

The court reviewed the conflicting expert evidence from geriatric specialists regarding her capacity to observe, recollect, and communicate.

Applying section 18(2) of the Ontario Evidence Act, the court determined it was necessary to conduct an in-person examination of the applicant to assess her testimonial capacity before ruling on the issue.

The applicant challenged his mother's Will, which disinherited him, arguing she lacked testamentary capacity, suffered from insane delusions, and was unduly influenced by his brother.

The court found that while the Will was executed under suspicious circumstances, the respondents successfully proved the testator had testamentary capacity and was not operating under insane delusions.

The court held that the testator's reasons for disinheriting the applicant, though perhaps unreasonable or based on misunderstandings, were grounded in actual events and did not amount to insane delusions.

The applicant also failed to prove undue influence.

The application and related action were dismissed.