Legal Question in Wills and Trusts in Canada
Gift Gift items from persons suffering from dementia
We live in Ontario. My mother-in-law was diagnosed with dementia July 2005. April 2006 she gave us a dated& signed note(totally written in her handwriting) stating she gives us a china cabinet & a mantle clock when she leaves her home/death. She only has 1 china cabinet & 1 mantle clock so there is no guessing as to what items she is speaking of.
There are also some items that we have given her over the past 30 years & all family members know that all gift items given to her are to be returned to the person/s who gave them to her when she dies. This condition is not written in her will or anywhere else. Her will states the trustees can divide her assets(home furnishings & perhaps bank accounts) however they wish. Her property(home)is to be sold & money to be divided equally to her 6 children.
The 3 oldest children do not tell my husband any info about their mother, they are all very secretive about everything. Just by chance we heard from his Aunt(a sister of my husband's mother) that in October 2006 the 3 oldest children(2 are trustees of mother's will) expect to move my husband's mother into a home.
Question: Can the 3 oldest stop us from removing our items from mother's home before she leaves?
1 Answer from Attorneys
Re: Gift Gift items from persons suffering from dementia
Yes. I do not know if your mother-in-law has made a durable or enduring power of attorney, however the timing of her diagnosis of dementia (2005) and the timing of the note (2006) makes the validity of the note questionable. She may not have had the necessary capacity to make the gift which makes it void. This is a question of fact, not capable of full assessment here.
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