Testamentary Capacity Can Remain Despite Dementia

In the cases of McAndrew Estate (Re), 2020 ABQB 614 and 2021 ABQB 56, Diane Schultz chose to attack the 2011 and 2012 wills of her mother, Patricia McAndrew, alleging insufficient testamentary capacity due to dementia, suspicious circumstances, and undue influence by Ms. Schultz’s uncle, Orin Buchanan. Mr. Buchanan preempted Ms. Schultz by seeking advice and direction from the Surrogate Court as Personal Representative of the McAndrew Estate.

Ms. McAndrew died in 2018 having made three wills. She made a formal, mirror will with her husband (predeceased) and a solicitor in 2005, a new formal will on May 11, 2011, with a different solicitor, and a holograph will on July 24, 2012, with only Mr. Buchanan observing. The 2005 will gave much of the estate to Ms. Schultz, but the other wills spread the estate more evenly among family. The 2011 will strangely had the words “void” or “cancel” written on each page, and writing from Ms. Schultz are the bottom which read, “REVIVED. AUGUST 17, 2011”.

“[T]he case law is clear that a diagnosis of mental illness, cognitive impairment or dementia does not necessarily preclude testamentary capacity.”
Ms. McAndrew was living in an elderly care facility beginning in April 2011 and signed an immediate Enduring Power of Attorney (EPA) naming Ms. Schultz as her attorney. Doctors assessed Ms. McAndrew between January and June of 2011 and diagnosed her with dementia in June 2011. A doctor signed a Declaration of Incapacity for Ms. McAndrew at the same time in June 2011 regarding “matter(s) of a non-financial nature”. Notably, on July 31, 2012, one week after making her 2012 will, Ms. Schultz had the solicitor of her 2011 will draft a new immediate EPA making Mr. Buchanan her attorney.

Meanwhile, Ms. Schultz began taking money from her mother to pay for her gambling debts in 2011. Mr. Buchanan discovered this and hired legal counsel to demand repayment, which Ms. Schultz did after selling her condominium in 2012. Ms. Schultz would later switch to embezzling from her employer before filing for bankruptcy in 2018. Shortly after the Ms. McAndrew’s passing, Ms. Schultz would take more money from her dead mother’s accounts, leaving her indebted to the McAndrew Estate for about $55,000.

The Court did not have too much to work with in this case, as most of the medical records for Ms. McAndrew for 2011 and 2012 mysteriously disappeared. However, the court did have the statements and records of the solicitor, as well as those of the parties. Of these, the Court appeared to prefer the evidence of Mr. Buchanan over Ms. Schultz and placed more weight on the evidence given by the solicitor. The Justice had to rely on his own inferences based on the record as well.

“A person who lacks capacity at some points in time may have other periods of lucidity. Further, a person may have capacity to undertake some tasks, but not others.”

Ultimately, the Court found Ms. McAndrew did have the capacity to make both her 2011 and 2012 wills. Ms. McAndrew had reason to give Ms. Schultz progressively less, given that Ms. McAndrew knew Ms. Schultz was stealing from her. The wills, strange notes aside, were not unusual in any objective sense, and Mr. Buchanan’s involvement did not rise to the level of creating suspicious circumstances. In fact, the 2012 will was the fairest of them and gave Mr. Buchanan less than before. This made undue influence implausible. The solicitor, whom the Court stressed was extremely experienced in the field, assessed Ms. McAndrew’s testamentary capacity for the 2011 will and 2012 EPA, and both times found it present, notwithstanding Ms. McAndrew’s dementia.

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