How Memory Issues and Delusional Beliefs Invalidated a Will

How Memory Issues and Delusional Beliefs Invalidated a Will

When you pass away, your Will can be challenged and declared invalid on the basis that, at the time you made it, you lacked mental capacity.

Whether a Testator had the necessary capacity at the time he made his Will is not a simple question. A Testator may live independently, drive a vehicle, and nevertheless lack the mental capacity required to make a valid Will.

A recent decision from the Alberta Court of Queen’s Bench (Re: From Estate, 2019 ABQB 988) highlights some important considerations regarding the issue of capacity.


The Deceased

The Deceased at the heart of this case, Lorne From, died at the age of 75. He was survived by his two adult children: Carla and Randy.

The Deceased shared a close relationship with his son, Randy, until near the end of his life. From the age of 12, Randy worked with the Deceased at the Deceased’s trailer manufacturing company.

In 2000, the Deceased gifted 40% of his shares in the trailer company to Randy. Then, in 2007, the Deceased sold his remaining shares to Randy and stepped away from the business. The Deceased’s Will at that time, which he had made in 2001, directed that his estate was to be divided equally between Randy and Carla when he passed away.

Declining Health

The Deceased and Randy remained close for several years after the Deceased sold the company to Randy: seeing each other nearly every day. Over that time, however, the Deceased’s health diminished. He suffered his first stroke in 2004 and felt that he never fully recovered. As early as 2012, the Deceased complained to his doctor of shortness of breath and memory problems. In 2013, he had coronary bypass surgery, and then in May 2015 suffered a second stroke. He suffered a third stroke in April 2016.

The Deceased’s brothers, his former employees, and Randy all noticed changes in the Deceased’s behaviour as his health deteriorated. They all recalled that the Deceased became progressively more confrontational, angry, and forgetful.

After his second stroke in 2015, the Deceased became more aggressive towards Randy in particular. He alleged that Randy had not paid a fair price for his shares in the company, that Randy still owed him $1 million, and that Randy had stolen his land. The Deceased also complained to several people that he had no money, although he actually held assets and investments valued at over $1 million.

The 2015 Will

In September 2015, the Deceased executed a new Will. This Will left the entirety of his estate to his daughter, Carla, rather than dividing it equally between Carla and Randy. The Deceased told his lawyer that he no longer wanted Randy to be a beneficiary because he felt that Randy had ripped him off in the sale of his business, and that Randy had already received enough benefit from the sale.

The Deceased’s lawyer knew that the Deceased, while appearing to have full understanding of his assets and what he was doing, had gaps in his memory and was not aware of the exact details of the sale of his business. The lawyer recommended that the Deceased undergo a mental state evaluation with a doctor, but the Deceased refused. He was sure Randy would not challenge his Will, and the Deceased would not permit his lawyer to contact his doctor directly.

However, after signing his new Will in September 2015, the Deceased did in fact see his family doctor, who conducted a Mini Mental State Examination (“MMSE”) on the Deceased. The Deceased scored within the “normal” range on the exam, but, notably, an MMSE is not recognized as a test for executive function.

The Deceased also had two other medical assessments done in 2015, but they predated the making of his 2015 Will by several months. In May 2015, he had scored 16/30 on the Montreal Cognitive Assessment (MoCA), version 1, and in June, he had scored 19/30 on the MoCA, version 2. While two experts in this case agreed that the MoCA was superior to the MMSE, they also agreed that these tests do not measure executive function, they do not detect the presence of delusional beliefs, and they could have produced different results by September 2015.

The Challenge

After the Deceased passed away in 2017, Carla filed an application to obtain formal proof of the 2015 Will, and Randy challenged the Will’s validity.


The Court ultimately determined that the Deceased lacked the mental capacity to make a valid Will in September 2015, and declared the 2015 Will invalid.

The Court reached this conclusion by first noting the circumstances that called into question the Deceased’s capacity. These circumstances included his chronic health problems, his memory issues, his mistaken beliefs in the land and assets he owned, and the apparent delusions he held about his son mistreating him and owing him money.

The Deceased’s failing memory was a key determining factor noted in the decision. The Court concluded that by September 2015, the Deceased appeared to lack clear memory of the full extent of his property and he could not remember details of his business sale, including the sale price. The Court also found that the Deceased had likely held delusions and false beliefs about Randy and the state of his property. This made it difficult to conclude that a “disorder of the mind had not poisoned his affections” and “perverted his sense of right.”  

The Court therefore determined that the Deceased had lacked the capacity required to make his 2015 Will valid.

The Takeaway

This decision serves as an important reminder to prepare your Will and other estate planning documents early in life, and to keep them updated to ensure they remain in accordance with your wishes.

It also reminds that a Testator may need to take extra precautions, including appropriate and timely medical assessments, if the Testator is making his Will at an advanced age or in poor health. Doing so can help ensure that the Will reflects the Testator’s true intentions, and can assist in withstanding challenges to the Will.

Should you wish to discuss estate planning matters, please contact Field Law’s Wills, Estates and Trusts team.  We would be very happy to assist.

Leave a Reply

Your email address will not be published. Required fields are marked *