Contemporaneous versus retrospective evidence of testamentary capacity in Ontario


Case comment: Kay v. Kay Sr 2019 ONSC 3166, 2019 ONSC 3166 (CanLII)*

(*published in Association of Contentious Trust and Probate Specialists Newsletter Issue 242 March 2020)

This decision of the Ontario Superior Court of Justice released in June 2019 weighs the value of contemporaneous versus retrospective evidence of testamentary capacity. It illustrates the importance of the evidence of the solicitor who drafts an impugned testamentary document, which can overcome contrary expert capacity assessment evidence.

The Court found, based on the drafting solicitor’s contemporaneous evidence, that an 89 year old woman who was suffering from moderate dementia prior to signing her will had testamentary capacity, despite a posthumous assessment by a qualified capacity assessor experienced in diagnosing dementia, who concluded there was reasonable evidence for determination of incapacity.


Mrs Wooton made her last will in November 2010. She died in August 2016. The medical evidence established that in November 2009, a year before making the will, Mrs Wooton was provisionally diagnosed with dementia, moderate impairment of memory and progressive cognitive and functional decline. In October 2010 she was assessed by Geriatric Psychiatry Community services in her city. The assessment included observations that her memory had started to deteriorate “a year ago”, that she was “quite tangential and had to be redirected throughout the interview”, and that she was showing deficits in short and long term memory. The Court summarized the medical assessments as concluding that Mrs Wooton had difficulty with tasks involving language and memory skills, and her insights into her cognitive defects was “grossly impaired”.

Evidence of Drafting Solicitor

The Court made findings including the following based on the solicitor’s evidence which was comprised of his contemporaneous notes and the transcript of his out of court examination:

Mrs Wooton’s meeting with the drafting solicitor in which he took instructions lasted 1.6 hours during which time he spent “an hour or so” speaking with and questioning Mrs Wooton; Mrs Wooton did not know the monetary value of her home, the balance in her bank accounts or whether she had a life insurance policy; Mrs Wooton was aware she had a prior will and that the new will would make changes; the drafting solicitor was unaware of her previous capacity assessments; the drafting solicitor was satisfied that Mrs Wooton had testamentary capacity in part because she had “an overall picture” of her family and her assets on the day she executed the will.

Retroactive assessment

The posthumous capacity assessment was prepared in April 2019, 9 years after the will was made.  Its author was a neuropsychologist with over 25 years experience in assessing cognitive abilities in order to diagnose underlying dementia or to determine the extent of cognitive impairment associated with other medical disorders. The assessment was based on a review of medical evidence and previous assessments, and it charted the chronology of the onset and course of Mrs Wooton’s cognitive decline. This expert evidence was admitted despite challenge.  

The Court held the retroactive assessment evidence rebutted the presumption of capacity and placed the onus of proof of capacity on the propounder of the will. However the Court attached only modest weight to the report.  It found a retrospective assessment was “inherently frail”. It was not an exhaustive review of Mrs Wooton’s life in and around the time she signed the will.

The will was declared valid. The Court concluded that despite some cognitive deficits, the testator more likely than not had capacity, finding the drafting solicitor’s evidence more persuasive than the retrospective assessment. 

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