In the case of a will, suspicious circumstances questioning capacity may be (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. (See Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 (SCC). at p. 888.) Should the capacity of the testator where indications at the outset later come into question in a court of law, the quality of the notes kept by the draftsperson, a likely witness, will be in issue. Note taking should therefore be an observant part of the solicitors file.
Thought can be given to a measured, habitual format that will ensure that appropriate notes are maintained and easily referred to should their assistance be required. One tip is to convert rough observations taken in the course of an interview into a more formal note to file anticipating what a trier of fact will be looking for in the case of wills or POA’s: appreciation for the information relevant to the decisions being made or not made; and an understanding of the consequences of making or not making it.
A file note that is headlined by the tests to be applied and that presents observations that are organized in that helpful matter, confirming what issues were raised and considered and why capacity of the testator was not considered an issue will serve the file, the draftsperson and the trier of fact well.
