Blog – Vancouver Lawyers

Determinations of testamentary capacity are central to many Estate Litigation disputes in British Columbia. In Part 1 of this blog, we reviewed a recent decision Bach Estate (Re), 2017 BCSC 548 wherein Mr. Justice Kelleher considered the definition of “testamentary capacity”. In brief summary, testamentary capacity means whether the Deceased was of sound mind, memory and understanding and whether they were able to comprehend and recollect the property they owned, whom they were giving it to, what the benefit of the gift would be and any claims for which they ought to be giving consideration.

In the same decision, Mr. Justice Kelleher also considered the test to be applied by the Courts when assessing whether a testator had the requisite testamentary capacity:

[27] The test is not particularly onerous. In McLean and v. Gonzalez-Calvo, 2007 BCSC 646 (CanLII), MacKenzie J., as she then was, again citing Banks, stated at para. 53:

In Dalziel v. Bradford, Chief Justice McEachern said at 233:

The classic test for testamentary capacity is found in the judgment of Cockburn C.J. in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 567 as follows:

In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of this property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have meditated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending in business in some measure new.

I agree with counsel for the defendants, apart from Mrs. Hemmings of course, that the courts, particularly with a first will, do not require a stringent standard for testamentary capacity. The Supreme Court of Canada considered the issue of a previously insane testator’s will in Laramée v. Ferron (1909), 41 S.C.R. 391. The testator there had periods of insanity and inability to prepare a will prior to preparing the will in question. The court said at 407:

Then we have two professional gentlemen who give evidence as to the making of the will and unless we discard what they say as utterly unworthy of belief without any proper reasons for doing so I do not see how we can, especially in light of what had gone before, say that deceased was so deprived of mind, memory and understanding that she could not make a will.

[28] The burden of proving testamentary capacity is on the propounder of the will, although they benefit from a presumption of capacity where the will has been duly executed, with the requisite formalities, after having been read by or to a testator who knew and approved of the contents of the will: Maliwat v. Gagné, 2009 BCSC 1447 (CanLII) at paras. 106-108.

If you are involved in an estate dispute and wish to challenge the validity of a will or seek a variation of its terms, contact the Kushner Law Group to schedule a consultation.