In another blog article we commented on the Roe v. Roe decision by Justice Tamara Sugunasiri Where the Responsibility Lies in a Will Challenge. Today we are going to look at one specific aspect of that decision and canvass the concept of Insane Delusions. This rather ancient and strange phrase arises from the legal fountain of all court cases related to attacking a Will. We are putting a microscope to the argument that the willmaker aka the testator lacked testamentary capacity. We are of course referring to the 125 year old English Court decision in Banks v. Goodfellow. To quote “….. that no disorder of the mind shall poison his affections and pervert the exercise of his natural faculties. That no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound would not have been made”. Long flowery language, more appropriate to Victorian England then today yet it still remains the sun which powers all court cases on testamentary capacity.
To expand upon 125-year-old quote, the Judge was talking about “if insane suspicion or aversion takes the place of natural affection. If reason and judgment are lost the mind becomes prey to insane delusions calculated to interfere with and disturb its function…”. As the Supreme Court Canada held in the 1902 case Skinner v. Farquharson, delusion is insanity where one persistently believes supposed facts (which have no real existence except in his perverted imagination), against all evidence and probability and conducts himself however logically upon the assumption of their existence.
Further, this is a field that has been tilled numerous times, but in the 2019 Superior Court decision Slover v. Rellinger, there was an attempt to summarize all of this law and to turn it into something that is more understandable. The thread that runs through these cases is that for a testator to be found incapable on the basis of insane delusions, the delusion must be shown to be false and fixed, that is incapable of explanation or rationalization, and it must have taken over the person’s Will making. Anger or resentment based on a fact that exists is not enough. A Judge should ask can I understand how a person in possession of their senses could have believed the facts that have impacted the Will making. Exaggerated response is not an insane delusion, a tendency to exaggerate or hyperbole is not the test. One might simply say that it is as simple as, has the person lost their mind and that the average person would simply assume the person was insane and not right in the head. A difficult test, but one is forced to diagnose the dead. Often senior will lawyers testify when they speak of whether or not the willmaker had capacity, that “I know it when I see it.” It is a legal not medical test.
