The legal standards surrounding a person’s ability to create a valid will have remained largely consistent for over a century and a half, even as medical science has made vast leaps in understanding the complexities of cognitive decline. A recent decision from the Supreme Court of British Columbia has underscored the delicate balance courts must strike when a will is created late in life by someone facing significant mental health challenges1. In the case of Lavictoire v. Schwarz, Madam Justice Francis was tasked with determining whether Zofia Rymgaillo possessed the necessary testamentary capacity to sign a new will in May 2012, just months before she was formally declared incapable of managing her own person or finances. The resulting judgment provides a detailed look at the intersection of medical diagnosis, legal procedures, and the specific duties of lawyers when assisting elderly clients with their estate planning.
Zofia Rymgaillo was a woman who had outlived both of her sons, Joseph and Alexander. Her family circle eventually consisted of her two granddaughters, Angela Lavictoire and Charlene Leduc, as well as several extended family members, including her sister Veronica Piechota and several nieces and nephews. In 2006, Ms. Rymgaillo had executed a will that left her entire estate to her two sons. However, because she did not include a clause for what should happen if her sons died before her, the death of both sons meant that her estate would technically pass through intestacy rules if that 2006 will remained her final valid document. Under the laws of intestacy, her granddaughters, Ms. Lavictoire and Ms. Leduc, stood to inherit her entire estate in equal shares.
The stability of this arrangement began to falter around 2010 when Ms. Lavictoire, who had moved into her grandmother’s home to help care for her, noticed signs of significant cognitive decline. According to testimony provided to the court, Ms. Rymgaillo began experiencing hallucinations and disruptive nighttime episodes by mid 2011. On several occasions, she called emergency services for reasons that could not be explained. By early 2012, the situation had escalated significantly. Ms. Rymgaillo was no longer able to prepare her own meals or manage her medications. In one particularly concerning incident in January 2012, she wandered away from her home and was found lost in a park, leading to her admission to the Royal Columbian Hospital. Further hospitalizations followed in February 2012 due to a fall and an infection, during which time she was assessed by geriatric medicine specialists and psychiatrists.
The medical records from these hospital stays painted a picture of a woman struggling with profound disorientation. Dr. Hem Phaterpekar, a psychiatrist, noted in February 2012 that her thinking was disorganized and her judgment was poor. By March, while some acute delirium had subsided, Dr. Michael O’Conner observed that Ms. Rymgaillo had little to no knowledge of her own personal care or financial needs. In subsequent interviews, she was unable to recall that she owned a home, could not identify where she banked, and was unaware of her monthly income or expenses. She even expressed the mistaken belief that she lived alone. These observations led both doctors to conclude that she was suffering from moderate to severe dementia, likely caused by Alzheimer’s disease or Lewy Body Dementia.
Concerned by this rapid decline, Ms. Lavictoire initiated a committeeship petition in April 2012, seeking legal control over her grandmother’s person and finances to ensure she was protected. As part of this process, the medical affidavits from Dr. O’Conner and Dr. Phaterpekar were filed, both of which stated that Ms. Rymgaillo was incapable of managing her affairs and that her condition was progressive and unlikely to improve. It was in the shadow of this active legal proceeding that a new will was drafted. On May 4, 2012, just weeks after the committeeship materials were served, Ms. Rymgaillo’s niece, Krystyna Huitema, contacted a lawyer named Robert Burgess to arrange an appointment for her aunt to make a new will.
The circumstances surrounding the creation of this May 2012 will became the focal point of the court’s inquiry. When the meeting took place on May 11, Ms. Huitema was present and acted as a Polish interpreter for Ms. Rymgaillo, whose English was limited. Under the terms of this new document, the estate was no longer destined solely for the granddaughters. Instead, the residue of the estate was to be divided into six equal shares among the deceased’s sister and various nieces, nephews, and granddaughters. Because some of those beneficiaries predeceased Ms. Rymgaillo, the practical effect was that the estate would be split four ways, significantly reducing the inheritance of the two granddaughters compared to the 2006 arrangement.
During the summary trial, the court examined the evidence of the drafting solicitor, Mr. Burgess. He testified that he was aware of the pending committeeship and knew he had to take careful steps to ensure capacity. He used a checklist to record that he was satisfied she was oriented to time and place and understood the nature of the will and her property. However, under cross-examination, Mr. Burgess admitted that he had no notes of the specific questions he asked or the answers provided. He could not recall if he had received the instructions for the distribution from Ms. Huitema during their initial phone call or from Ms. Rymgaillo during the meeting. He also acknowledged that he did not ask the deceased about the specific value of her home or the details of her bank accounts, and he did not discuss the specific terms of her 2006 will or how the new will would change her estate plan.
The court also considered the testimony of Karol Wince, a Polish-speaking colleague of Mr. Burgess, who met with Ms. Rymgaillo to translate the will. Mr. Wince stated that he read the will paragraph by paragraph and that Ms. Rymgaillo nodded or said “yes” in Polish when asked if she understood. She did not ask any questions during this process. Despite this second layer of review, the court found that the evidence did not sufficiently prove that Ms. Rymgaillo had a true grasp of her estate or the legal consequences of the document she was signing.
A significant portion of the judgment was dedicated to the admissibility of the medical evidence from the 2012 committeeship proceeding. The defendants argued that the affidavits from Dr. O’Conner and Dr. Phaterpekar should be excluded because they were hearsay and because the doctors were not called to testify in the current proceeding. However, Justice Francis ruled that the affidavits were admissible. She noted that while they were hearsay, they met the requirements of reliability, as they were sworn statements from a previous court proceeding. The judge found that it would be contrary to the court’s truth-seeking function to ignore the findings of medical professionals who had examined the deceased at the exact time the disputed will was being created.
In her analysis, Justice Francis applied the long-standing legal test for testamentary capacity, which requires that a will-maker understands the nature of the act, the extent of their property, and the people who would naturally expect to inherit from them. They must also be free from any disorder of the mind that would pervert their judgment. The judge noted that a diagnosis of dementia does not automatically mean a person cannot make a will, but it does create a need for a very careful review of the facts. In this case, the court found that several “suspicious circumstances” existed, including the fact that a beneficiary was instrumental in making the will, the existence of a recent dementia diagnosis, and the significant departure from the previous estate plan.
These suspicious circumstances shifted the burden of proof to the executor to prove that the will was valid. The court concluded that the executor failed to meet this burden. The judge criticized the “yes or no” nature of the questions used by the drafting lawyer, noting that such perfunctory inquiries are insufficient to determine capacity in a client with known cognitive struggles. Because there was no evidence that Ms. Rymgaillo could hold the “essential field of her mind” in appreciation of her assets and family claims, the court declared the 2012 will invalid. As a result, the distribution of Zofia Rymgaillo’s estate will be governed by her prior 2006 will and the resulting provincial laws of intestacy.
Read more about estate law cases here.
