In British Columbia, a will is deemed valid under the Wills, Estates and Succession Act when created by:
- A person who is 16 years of age or older, and
- Who is mentally capable of making a will.
However, what determines if a person is mentally capable to create a will? This is the question of testamentary capacity. Klein Lawyers explains.
What Does It Mean to Be “Mentally Capable?”
The question of mental capability comes into play when determining if a will-maker had the testamentary capacity when creating their estate plans.
Under the British Columbia Supreme Court case, Nykoryak v. Anderson, 2017 BCSC 1800, the requirements for a testator to have a “sound disposing mind” in order to make a valid will must include the following:
- The testator must understand the nature and effect of a will;
- The testator must recollect the nature and extent of her property;
- The testator must understand the extent of what she is giving under the will;
- The testator must remember the persons she might be expected to benefit under her will;
- The testator, where applicable, must understand the nature of the claims that may be made by a person she is excluding from the will.
In addition, the court ruled that “isolated memory or other cognitive deficits” are not enough to establish a lack of testamentary capacity. This includes having an imperfect memory, inability to recollect names, and even extreme imbecility–all of which may not be enough to deprive a person of testamentary capacity.
This is because the test of testamentary capacity is a legal test–not a medical one. So, if a family provides a medical assessment of the will-maker, it will still often not the only factor in the determination. In fact, the courts will look to the solicitor who was involved in the drafting of the will to determine whether the will-maker was deemed capable at the time of the creation of the will.
In other cases, the court may rely on the family and friends of the will-maker to determine if the will maker’s mental capability had not been sound at the time the will was created. If the family is contesting a will on the grounds of mental incapacity, they must be able to prove that the will-maker did not understand the consequences of his or her actions and the impacts it would have upon application.
Because a person’s mental capabilities may diminish over time, the courts will also question the timing. For example, if the will-maker was mentally capable when the will was being drafted but had lost mental capacity at the time of execution, the will-maker then had the testamentary capacity to understand the directions he or she was providing when the will was created.
Signs of Decreased Testamentary Capacity
If you suspect your loved one created his or her will while lacking testamentary capacity, be sure to note:
- Changes from an earlier will that seem strange, especially if there have not been major changes to the family structure;
- Suspicious circumstances;
- Signs of undue influence;
- Illness (physical or mental) that the will-maker had while creating the will;
- Medications or drugs that could have altered their mental state; or
- The will-maker rushing the will for unknown urgent needs.
If you suspect a loved one had a decreased sense of testamentary capacity, you need to call Klein Lawyers.
Questioning Testamentary Capacity? Call Klein Lawyers LLP
If you suspect a loved one’s will was created while he or she had a diminished testamentary capacity, you need the British Columbia wills variation lawyers at Klein Lawyers. Our estate litigation lawyers will review the will and navigate the legality of your claim, ensuring you get what is rightfully yours.
Contact Klein Lawyers at (604) 874-7171 today for a confidential case evaluation. We serve clients throughout British Columbia from offices in Vancouver, Abbotsford, Burnaby, Coquitlam, Langley, and Surrey.