What Happens When Lack of Testamentary Capacity Is Temporary?

Issues That Lead to Temporary Lack of Testamentary Capacity | Klein Lawyers

We often discuss the problems that occur when a loved one is believed to have drafted a will when experiencing a lack of testamentary capacity, undue influence, etc. While we often think of these as long-term issues that invalidate a will, what happens when a lack of testamentary capacity is temporary? Klein Lawyers explains.

Complications That May Cause Temporary Capacity Issues

In order to test capacity in will-making, the courts will often employ the Banks Test which establishes the criteria for which a will is deemed valid and determines the will-maker to be capable of its creation. 

Under the test, the will-maker must:

  • Understand the nature of making a will and, in turn, its effects;
  • Appreciate the extent of the property that will be distributed by the will;
  • Have an adequate appreciation of who will benefit from the will and understand the moral claims of other persons who should receive benefit from the will; and
  • Recognize the manner in which assets are to be distributed under the will.

Since the creation of the test, the exact wording has varied, but in essence, the courts will use these guides to decide if the testator was of sound and disposing mind and memory.

In addition to establishing the guidelines for testamentary capacity, the Banks Test also establishes two ways a person may lose testamentary capacity. The first is being of general unsoundness of mind. The second is by having specific delusions–meaning the delusions must be specific to the will and its provisions.  

With this in mind, consider the following temporary mental conditions which may lead to a lack of testamentary capacity:

  • Unconsciousness caused by an accident, illness or treatment for that illness, or being under the influence of alcohol or drugs. 
  • Short-term memory loss due to a lack of oxygen, substance abuse, epilepsy, insomnia, etc.
  • Age-related cognitive impairment
  • Delirium

Because of the temporary nature of these conditions, it’s important to know that timing will most often be the determining factor if a will was created during a bout of diminished testamentary capacity.

Lack of testamentary capacity must be present at the time or a time nearest when the will is being created. For example, a person who has no prior medical condition which would inhibit testamentary capacity falls ill and requires medications that alter the mind, just for a short time.

During those times where the individual was not of clear conscious and sound thought, a will that was drafted could be found invalid. However, once the person is off the medication and recovered, and he or she then creates a will or other estate planning documents, there would not be a lack of testamentary capacity. 

While medical conditions influencing temporary testamentary capacity are sometimes apparent, most often, wills variation claims come when a loved one has been experiencing a lack of testamentary capacity as a result of a long-term condition that has lasting effects on the mind, memory, and decision-making ability. 

Lack of Testamentary Capacity in Question? Call Klein Lawyers

It will take an experienced lawyer to navigate the condition of the testator to determine whether lack of testamentary capacity was present or not at the time of a will’s creation. If you have a concern about testamentary capacity in British Columbia, Klein Lawyers can help.

Contact Klein Lawyers at (604) 874-7171 today for a free, confidential case evaluation. Our wills variation lawyers serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.