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The Role of the Medical Expert in Estate Litigation

When: Thursday, April 22, 2021 - Friday, April 23, 2021
Where: Sunnybrook Health Sciences Centre (room to be determined) (limited in-person and online participation)

Time: 8:30 a.m. – 4:30 p.m.

Learn to become an expert from experienced clinicians, estate litigators and a superior court judge:

  • Introduction to estate litigation and related matters
  • An approach to the retrospective and contemporaneous assessment of testamentary and related capacities
  • Crafting the opinion – a deeper dive into preparing reports and testifying in court
  • Structuring reports with case examples (interactive)
  • Giving evidence in court (role play and observation feedback)


Clinician experts
  • Jocelyn Charles - Care of the Elderly Physician
  • Carole Cohen - Geriatric Psychiatrist
  • Nathan Herrmann - Geriatric Psychiatrist
  • Kenneth Shulman - Course Director
Estate litigators
  • Ian Hull, Hull & Hull LLP
  • Kim Whaley, WEL Partners
  • Madam Justice Susan G. Himel, Superior Court of Justice Ontario

Course agenda

CPD two day Course

The role of the medical expert in estate litigation

The Problems being addressed:

  • A shortage of qualified medical experts who are able and willing to help the courts make their determinations in cases of disputed capacity and allegations of undue influence related to estate litigation
  • This is a concern in an aging population with a high prevalence of cognitive and mental disorders who are about to make the greatest transfer of wealth in history to a generation of increasingly complex families under great economic strain
  • It is anticipated that the number of challenges to Wills and related estate documents will increase
  • Medical and postgraduate training does not address the assessment of estate related capacities

Target audience: Psychiatrists (general and geriatric), Neurologists, Geriatricians, Care of the Elderly primary care physicians

Course: 2 days including lectures and interactive seminars

Dates: April 22 & 23, 2021 (8:30 a.m.  - 4:30 p.m.)

Registration fee: $500 includes all materials, food for both days


Royal College Maintenance of Certification (12 hrs)

College of Family Physicians of Canada (12 credits)

Overall goals of the course

  1. Increase the number of medical experts in Ontario who are knowledgeable and skilled in the assessment of testamentary and related capacities and familiar with the court processes that arise from these cases.
  2. Define the competencies necessary for the role of medical expert in estate litigation


Clinician Experts - Sunnybrook, University of Toronto

  • Jocelyn Charles (Care of the Elderly Physician)
  • Carole Cohen (Geriatric Psychiatrist)
  • Nathan Herrmann (Geriatric Psychiatrist)
  • Kenneth Shulman (Course Director)

Estate Litigators

  • Ian Hull, Hull & Hull LLP
  • Kimberly Whaley, WEL Partners

Superior Court of Justice Ontario

  • The Honourable Madam Justice Susan G. Himel

PRELIMINARY AGENDA (detailed agenda to follow)

Day 1: Legal background and clinical approach to assessment (Pre-course readings to be distributed)

Session 1 (9:00 a.m. – 12:00 p.m.)

Introduction to Estate Litigation and Related Matters

  • Defining legal terms and the legal test/criteria for determining testamentary capacity, decisional capacity to execute powers of attorney, and other related legal capacities such as capacity to gift and capacity to marry and divorce
  • General principles of capacity assessment including the role of complexity, conflict and legal concerns;
  • Paradigm for determining susceptibility to undue influence;
  • Review of Banks v Goodfellow common law criteria;
  • What lawyers and the courts need from medical experts;
  • Rule 53- Acknowledgement of Expert’s Duty

Session 2 (1:00 – 4:30 p.m.)

An Approach to the Retrospective and Contemporaneous Assessment of Testamentary and Related Capacities

  • The process of being retained including the retainer letter, directions, conflicts, fees
  • Legal materials to be reviewed
  • Review of medical records/history - key information
  • Interpretation of mental status examination including cognitive testing
  • Impact of mental and cognitive disorders on capacity
  • Opportunities for probing during contemporaneous examination

Learning Objectives for Day 1

  1. Participants will be better able to describe the legal basis for testamentary and related capacities. Specifically, they will learn the criteria under Banks v Goodfellow for testamentary capacity.
  2. Participants will be able to take a systematic approach to the contemporaneous and retrospective assessments of testamentary and related capacities
  3. Participants will appreciate the role of the medical expert in the assessment of vulnerability to undue influence.

Day 2: Crafting the opinion – a deeper dive into preparing reports and testifying in court

Session 1 (9:00 a.m. -12:00 p.m.)

Structuring Reports (with case examples) (interactive)

  • Contemporaneous assessments
  • Retrospective assessments

Session 2 (1:00 – 4:30 p.m.)

Giving Evidence in Court (use of role play and observation feedback)

  • Mock Examinations in-chief
  • Mock Cross Examinations
  • Use of triads with lawyer, MD participant, MD Observer
  • Individual role play and group interactions with feedback
  • Do’s and don’ts of being an expert

Learning Objectives for Day 2

  • After active engagement in these sessions, participants will be better able to prepare and write structured reports for contemporaneous and retrospective assessments of testamentary and related capacities.
  • Participants will be able to respond more comfortably to an examination-in-chief and cross examination.

Limited in-person and online participation. $500 registration (for both days). Materials included.

For more information contact

Accreditation approved for Royal College Maintenance of Certifi cation (12 hrs) and College of Family Physicians of Canada (12 credits).