Challenging Testamentary Capacity

Testamentary capacity should definitely be considered if you are trying to avoid the effects of a Will

One way of overturning a Will is to show that the testator lacked the necessary testamentary capacity at the time the Will was signed.

The current legal test sets out four criteria for establishing the mental capacity of a will-maker:

  1. The testator understands he/she is making a Will and that the Will disposes of property upon his/her death;
  2. The testator must know the assets he/she disposes of; that is, the testator understands the nature and extent of his/her property;
  3. The testator understands and appreciates the claims to which he/she ought to give effect; that is, the testator understands who should be considered under the Will as a beneficiary; and
  4. The testator must be free of any delusions that may affect his/her decision.

The Supreme Court of Canada has decided that a will-maker must have a “disposing mind and memory” when making a Will. This is defined to mean capable of comprehending, on one’s initiative and volition, the essential elements of Will making. The list includes an understanding of what property and assets the testator owns, who should be considered as a beneficiary and an understanding that the new Will is a revocation of existing dispositions. The Courts in British Columbia have similarly agreed that a testator needs to be capable of making his/her Will with an understanding of the nature of the business in which the testator is engaged, a recollection of the property the testator mean to dispose of, knowledge of the persons who will be recipients of the property, and an understanding of the manner in which assets are to be distributed between the beneficiaries.

An important note is that a will-maker need not be able to comprehend the Will’s provisions in their legal form. It is sufficient that the testator has the requisite mind and memory to enable them to understand the elements of which the provisions are composed, and the distribution of property in its simplest form.

The burden of proving testamentary capacity is on the party trying to support the Will (called proof in solemn form), but there is a presumption of appropriate capacity where the Will has been properly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. This presumption may be rebutted by evidence of suspicious circumstances provided by the parties disputing the validity of the Will, in which case the burden of proof returns to the party supporting the Will to prove testamentary capacity. Any evidence of suspicious circumstances must create a specific and focused suspicion that the testator may not have known and approved of the contents of the Will.

Suspicious circumstances come in all forms. An example would be where the testator made a third party a beneficiary when the testator did not even know or deal with the person/organization. Another example is where the testator is driven to the lawyer’s office by a caregiver, family member or friend and then that person benefits from the Will.

Ultimately, medical evidence regarding the capacity of the testator at the time the Will was made is vital. The impression of family and friends that knew the testator at the time the Will was made is somewhat important but less critical.

Ideally, the testator was under the care and guidance of a family doctor or in a care home leading up to and following the preparation of the Will. Subject to some level of bias on the part of the doctor, the treating doctor’s opinion on testamentary capacity will be highly persuasive.

If there is no real evidence of dementia or other mental disorder leading up to the preparation of the Will, the chances of the Will being found invalid is low. Usually, successful cases occur where the testator had already been diagnosed with a serious mental illness, had a very recent low mini mental status exam (MMSE) result and/or has been “committed” to a hospital/care home due to mental incapacity. Even then, there are no guarantees that the Will is found to be invalid as the bar is quite low to establish testamentary incapacity.

The family simply stating that the testator was “not all there” or “losing his/her mind” is not enough without some medical opinion backing-up the allegations.

Note that if the Will was prepared by a lawyer or notary who previously knew the testator and/or practices in the area of wills & estates, chances are the Court will rule that the Will is valid simply on the basis that the legal representative was in the best position to assess testamentary capacity.

Finally, some testators have variable mental capacity meaning they have good days and bad days. The key is to look at the exact time the Will was signed to figure out if capacity existed.

In summary, testamentary capacity should definitely be considered if you are trying to avoid the effects of a Will. However, the bar is quite low and even a testator with a significant mental illness can be found to have had capacity at the time of signing the Will.

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