What Is Testamentary Capacity?

Capacity for Drafting a Legally Valid Will

The capacity of an individual to make a legally valid will is often the subject of dispute in estate litigation. Because the Wills, Estates and Succession Act of British Columbia does not provide a definition for capacity, and the law in British Columbia has adopted a presumption that qualified individuals are capable of making a will unless proven otherwise, it is important to work with a lawyer who understands how to evaluate issues of capacity and challenge provisions in your loved one’s will.

If you suspect your loved one did not have the capacity to make a legally valid will, our wills variation lawyers can file a claim on your behalf to vary the will so you are provided adequate maintenance and support. You may be entitled to recovery of assets and property from your deceased family member’s estate.

Please call Klein Lawyers at (604) 874-7171 today for a free case evaluation. Our lawyers handle testamentary capacity and other issues in wills variation cases for clients in Vancouver, Surrey, Abbottsford, Langley, Burnaby, Coquitlam, and throughout British Columbia.

What Are the Elements of Testamentary Capacity?

According to the Wills, Estates and Succession Act, anyone who is (i). at least 16 years old and (ii). mentally capable is presumed to have the capacity to make a will. The term “mentally capable” is very broad, leaving significant room for challenges on the grounds of testamentary capacity.

How Is Testamentary Capacity Determined?

To assess capacity, the court will evaluate the mental state of the testator (the person making the will) at the time the will was drafted and signed. Key questions the court will seek to answer include:

  • Did the testator understand the purpose of the will?
  • Did the testator exhibit clear decision making in the disposition of the estate?
  • Did the testator understand what his or her estate entailed and the value thereof?
  • Did the testator understand his or her obligations to make adequate provisions for a spouse and child (or children)?
  • If the testator deviated from this obligation, did he or she understand the effect of the disposition?
  • Did the testator create a coherent estate plan?

Common objections to these elements of testamentary capacity rest on arguments that the testator suffered from a mental disease or defect that compromised their judgment. Our lawyers will evaluate your loved one’s medical records to identify any grounds for challenging capacity (and, as a consequence, the legal validity of the will). Witness statements from family and friends may also be valuable for establishing that a loved one was not in his or her right mind when drafting or signing the will.

Grounds for Challenging Testamentary Capacity

In wills variation cases, you may be able to dispute your loved one’s will if he or she suffered from a condition or defect such as:

  • Dementia
  • Senility
  • Schizophrenia and other mental disorders that may affect judgment and decision making
  • Medications that alter one’s mental state
  • Abuse of drugs and alcohol

However, it is important to note that the presence of one or more of these issues does not automatically invalidate your loved one’s will. Your lawyer must be able to present evidence that such issues compromised the capacity of the testator to make or revise the will.

Questions of undue influence may also be a factor in wills variation cases where testamentary capacity is disputed. A third party may have exploited your loved one’s incapacity in order to benefit from the will or unduly influence the disposition of the estate.

Can a Person Diagnosed with Dementia Change Their Will?

Although a variety of issues may cast doubt in the minds of loved ones as to the validity of a will, one of the most common situations where a will is disputed involves cases of an elderly person with dementia making or amending a will. Legally, those with dementia are not automatically considered incompetent. Instead, the court will consider how the dementia affected your loved one’s testamentary capacity. 

The Court of Appeal of British Columbia has addressed this very issue. In Malcolm v. Rounds, the court set forth a standard for determining testamentary capacity in cases of dementia:

“The fundamental question is whether the testator was of sound and disposing mind and memory … it is fair to say that, where instructions are given and then the will is executed, the sound and disposing mind ought to be present, both at the time of the giving of the instructions and at the time of execution of the will.”

Malcolm v. Rounds centred on the question of whether an elderly woman with senile dementia had the capacity to direct her solicitor to make a will that superseded a previous will. The Court of Appeal found that the testator was not of “sound and disposing mind and memory” in providing directions for the second will. Thus, the second will was declared invalid, and the earlier will was declared valid.

So, if your loved one was suffering from dementia at the time they made or signed the will, you may have a case for variation of the will. However, patients with dementia may experience periods of clarity and lucidity, during which they may qualify as being of sound and disposing mind and memory. With this in mind, you must be able to present evidence that dementia (or another condition) made your loved one incapable of making a valid will.

How Our Wills Variation Lawyers Can Help

Testamentary capacity is a delicate subject. It often involves what may seem like second-guessing the final wishes of the deceased, or dredging up painful memories of an illness that affected not only your loved one but the entire family.

However, under British Columbia law, the spouse and child (or children) of a deceased individual are entitled to adequate, just, and equitable provision in their loved one’s will. If you suspect your family member did not have the capacity to make a valid will and you were provided with insufficient maintenance or support, it is in your best interest to contact a wills variation lawyer.

Wills variation cases are subject to strict time limits, so it is important to act now. Call Klein Lawyers at (604) 874-7171 today for a free consultation in Vancouver, Surrey, Langley, Abbottsford, Burnaby, or Coquitlam.