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Notable Work

Senior’s mental capacity is questioned by experts

Burby v. Ball

Seniors can be susceptible to influence from another party. To overcome this, litigators sometimes use expert witnesses to provide an opinion on the elderly individual’s capacity, well after the point in time when the transaction occurs. These reports are referred to as “retroactive capacity assessments”—the validity of which are currently under question.

The case of Burby v. Ball centered on the sale of a ranching property by an 86-year-old lifelong rancher, with a wife but no children, to our clients, a young, neighbouring couple. Over two years after the sale, the rancher’s younger brother began a lawsuit, arguing the rancher had dementia at the time of the sale and was thus easily influenced or at a severe disadvantage in bargaining power. The eight-day trial took place almost seven years later.


At trial, both parties introduced expert evidence regarding the rancher’s capacity at the time of the transaction. The plaintiff’s expert concluded the elderly seller did not have capacity at the time of the transaction. Meanwhile, our expert concluded it was not possible to say the rancher was not mentally sound enough to make his own, informed decision.

Trial results

Ultimately, while the trial judge found both expert reports helpful, he did not accept one opinion over the other. He emphasized considerable caution is required when deciding whether to accept “retroactive capacity assessments.” He instead based his decision on the elderly seller’s capacity from the evidence heard at trial. The judge ultimately agreed with the defendants and found the rancher had “decisional capacity” at the time of the transaction. Our clients were awarded the deed to the ranch.

This decision is an important reminder that an expert report is only as useful as the evidence it is based on. If one party submits an expert report based on information that is later contradicted or proven false, then the report may essentially become useless for the court.

Sellers and buyers must make sure their contracts, or gifts, are structured and executed with the help of a lawyer to prevent challenges from disgruntled third parties. If disputes arise, effective litigation counsel is needed. McLeod Law has experience in both preparing and disputing such contracts and gifts.

Read the full judgment from 2017 and 2018.

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