Introducing Medical Records in a Will Challenge

By Merovitz Potechin on Thursday July 4, 2019.

Can you use medical records to prove that a family member lacked mental capacity when they made their Will? In cases where a Will is being challenged on the basis that the will-maker lacked capacity, litigants will frequently attempt to introduce the will-maker’s medical records to establish that the will-maker did not have the requisite legal capacity to make a Will. 

A recent 2019 decision of the British Columbia Supreme Court reviewed issues raised regarding the admissibility of medical records in Will challenges. 

Can medical records be used in court to prove mental capacity?

In Re Singh Estate, 2019 BCSC 272, the will-maker executed a Will in 2013, and died in April 2016. Following the deceased’s death, a 2016 Will, which was executed two months before the deceased died, was discovered which disinherited two of the deceased’s children that were beneficiaries under the 2013 Will. In between the execution of both wills, the deceased had experienced a fall and allegedly suffered cognitive issues as a result, including forgetfulness and confusion.  

At trial, the issue for the court was whether the 2016 Will was valid as the last will of the deceased. However, as a preliminary evidentiary matter, the court was tasked with determining the admissibility of the deceased’s medical records that the challengers of the 2016 Will sought to admit into evidence, which they argued were relevant in showing that there were suspicious circumstances around the deceased making the 2016 Will.

In response to the medical records, the propounders of the 2016 Will argued that the deceased’s medical reports were inadmissible on the basis that:

1. The medical records were not business records because they were being tendered for the truth of the statements contained therein;
2. The medical records included third party statements from family members, which they argued was double hearsay;
3. The medical records were not relevant in their entirety as none of the medical records were within days or even weeks of the dates on which the deceased gave instructions for the 2016 Will.

Before addressing each of these concerns, the Court looked to the law. While medical records are hearsay, the Judge noted that medical records are typically admitted under the business records exception to hearsay both at common law and under section 42 of British Columbia’s Evidence Act, and Ontario’s equivalent section 35 of Ontario’s Evidence Act. The requirements for the admission of medical records as business records are set out in the Supreme Court of Canada’s seminal decision of Ares v Venner, [1970] SCR 608, which held that:

Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being records and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. 

Turning to the first objection, the Court made clear that the party tendering the medical evidence was not tendering such evidence for the truth of its contents but rather for proof of the facts stated therein as they were trying to show that there were suspicious circumstances around the making of the 2016 Will. The court therefore found that the medical records were admissible as business records for the fact that the statements therein were made.

Turning to the second objection, regarding third party statements, the case law clarified that a patient or other third party must be within the observation of the medical practitioners who has a duty to record the observations in the ordinary court of business. In light of the case law, the court found that the direct observations of the various medical practitioners were admissible and relevant to the issue of suspicious circumstances.

On the third and final objection, the Court dismissed the objection on the basis that concerns regarding the timing of the records is not a threshold issue in admissibility. The Court clarified that concerns regarding remoteness goes to the weight of the records rather than their admissibility.

Once the court admitted the medical records into evidence, the court then turned to the validity of the 2016 Will and found the 2016 Will to be invalid on that basis that the deceased lacked testamentary capacity.

Challenging a Will based on evidence in medical records

Estate litigation involves a variety of considerations when looking to resolve a dispute. Medical records can impact estate matters and the validity of a Will. If you have questions regarding mental capacity, medical records or contesting a Will, contact our experienced estate litigation lawyers at Merovitz Potechin LLP.