Law Times

PAGE 10 FOCUS march 15, 2010 • Law Times Looming Alzheimer's epidemic to boost litigation BY SUSAN HUGHES For Law Times O ver the last few months, newspapers from the Toronto Star to the New York Times have reported alarming statistics on a coming tsunami: the Al- zheimer's epidemic. With the population aging, the number of people suff ering from the disease is expected to double to 1.25 million within 30 years. According to the study "Ris- ing Tide: Th e Impact of De- mentia in Canadian Society," a new patient is diagnosed every fi ve minutes. Within 30 years, that rate will increase to one every two minutes, the study, published last year by the Al- zheimer Society of Canada in conjunction with RiskAnalyti- ca, estimates. As with any type of demen- tia, the patient's capacity to make decisions about prop- erty or personal care becomes crucial, something that's not always easy to assess since vic- tims can be very adept at mask- ing their vulnerability. For estate litigators, will challenges over a testator's ca- pacity are on the increase. Rick Bickhram, an estate litigator at Hull & Hull LLP in Toronto, says that as the population ages, he's seeing more concerns over estate planning and wills. "Not a lot of consideration is being given to the capacity of the testator to make a will," he says. "We're starting to see a lot of what I like to term 'death- bed' wills, unfortunately." Bickhram advocates incor- porating a protocol that con- siders whether or not a testator has capacity; otherwise, counsel can expect to see a lot of estate litigation down the road. Wills, estates, and trusts lawyer Donna Neff at Neff Law Offi ce Professional Corp. in the Ottawa region agrees. She tries to head off potential litigation through a two-step process. First, she does a lot of exploration of potential problems, such as disinherit- ing a logical benefi ciary. Sec- ond, she tackles the risks that arise out of any problem in the estate-planning process. Unfortunately, assessing a testator's capacity can be problematic. A series of ar- ticles in Th e Globe and Mail last year outlined how diff er- ent provinces have varying rules for determining a pa- tient's capacity to give con- sent. In British Columbia, for example, there's a dis- tinction in the ability to do so between someone who is mentally ill and an otherwise healthy person. In Ontario, meanwhile, an individual must consent to a capacity assessment un- less a physician deems the patient incapable of doing so, which would only be in extreme cases such as those in- volving suicidal behaviour. Th at raises the question, then, as to how someone with Alzheimer's they're doing well and that nothing is wrong. One way of avoiding the consent quagmire is to make a will and an estate plan early on and update it regularly with each major life change. Bickhram argues that, if it's later challenged, the courts could then more readily Rick Bickhram is seeing more con- cerns over estate planning as the population ages. could possibly be capable of giv- ing valid consent. Patients with dementia tend to have little insight into their deteriorat- ing condition and often insist Announcing a special Interim Edition Ontario Annual Practice 2010 Interim Edition Includes the new amendments to the Rules of Civil Procedure! Major amendments to the Rules of Civil Procedure came into effect January 1, 2010. That's why we've created Ontario Annual Practice 2010 Interim Edition, which consolidates the amendments to the Rules of Civil Procedure and provides expert author commentary and practical advice on what the new rules mean and how they will apply. As a bonus, you'll also receive Ontario Annual Practice, 2010-2011 Edition at no additional cost in June (regular publication date). Get two editions in 2010 for the price of one. Ontario Annual Practice, Interim Edition includes all of the great features of the traditional OAP, as well as: • a general description of the newly amended Rules of Civil Procedure • pertinent case annotations - the cases which are no longer relevant in light of the amendments have been removed • a thorough overview of the amendments • a synopsis of each newly amended rule as well as expert commentary • the new Practice Directions for civil applications, motions and other matters in the Toronto region effective January 1, 2010 And with the monetary limit of the Small Claims Court increased from $10,000 to $25,000, this edition of OAP includes: • the amended rules of the Small Claims Court • case annotations • the amended Small Claims Court forms Hardbound (Main Volume) • 1872 pp. • Perfectbound (Forms) • 832 pp. • CD-ROM January 2010 • $89 • On subscription (includes both volumes, CD-R0M, paper supplements & e-notes) P/C 0645140000 • One time purchase $94 • P/C 0645010999 • ISSN 0318 3556 identify a testator's inten- tions. "As we go through the stages of life, our will refl ects the changes in our lifestyle. If ever there is the question about incapacity, whether it be raised by Alzheimer's or a motor vehicle accident where there is brain trauma, you will have a will that re- fl ects accurately what your last wishes are." As an estate litigator, Bickhram sees all kinds of claims and counterclaims over challenges to a will. "Now you can't create a will that is bulletproof," he says. "I think the law is grey. It's not black and white. Any person who has a fi nancial interest in an estate has the ability to challenge a will." Neff has a comprehensive questionnaire on her web site that clients must fi ll out before doing their will. She insists on a medical capacity assess- ment as well and does her own evaluation by asking questions, taking copious notes, and ob- serving body language during face-to-face meetings. One area of estate litigation that probably won't go away is that of so-called shakedowns: situations where a party doesn't have a good claim but launch- es one anyway in the hope of coming away with a settlement due to the "ever-escalating cost of litigation." "It's terrible but it's an unfor- tunate reality," Bickhram says. "For example, one of the ways to make a will more dif- fi cult to challenge would be to get a doctor's opinion. I met with my doctor yesterday, and he said I had the capacity to execute this will. Th en the lawyer could say, 'You look OK. You look as if you have capacity to me. You can recall what your assets are. You have capacity.' Th at would make it more diffi cult to challenge. It would be much more diffi cult to get a shakedown. And if you had a tough estate trustee, he or she could say, 'I'm going to trial.'" To challenge a will, Bickh- ram would again look at tes- tator capacity, including the person's awareness of the docu- ment being signed and wheth- er there was any undue infl u- ence. "At the end of the day, I think it all turns on medical evidence. But even if there's good medical evidence that shows a testator has capacity, with age he or she could be- come more vulnerable. When you become vulnerable, you're more exposed to being unduly infl uenced by someone." LT Carthy_OAP Interim (LT 1-2x4).indd 1 www.lawtimesnews.com 2/17/10 1:46:01 PM The Lat e Honourable Jus Der r y Millar and Jef tice James J. Car an f G. Co w t h y BONUS: Get the June edition FREE when you buy this special Interim Edition. Two Editions for the price of one!

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