What is Testamentary Capacity?

An issue that can arise in contentious Estate litigation disputes is whether or not a deceased person had the requisite capacity to make a valid will. This is especially significant in cases involving elderly or infirm Testators. The concept of whether a will-maker has the requisite capacity is called “Testamentary Capacity”.

In a recent decision of the British Columbia Supreme Court, Devore-Thompson v. Poulain,

2017 BCSC 1289, Madame Justice Griffin discussed the law with respect to Testamentary Capacity. In the decision she states:

[51]   The law of testamentary capacity has old roots. The case of Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 565, provided an early and enduring  formulation of testamentary capacity:

  It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of  which he is disposing; shall be able to comprehend and appreciate the claims to        which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or  prevent the exercise of his natural faculties — that no insane delusion shall  influence his will in disposing of his property and bring about a disposal of it  which, if the mind had been sound, would not have been made.

[52]  A thorough review of the principles regarding testamentary capacity was set out by Ballance J. in Laszlo v. Lawton, 2013 BCSC 305 at paras. 185-199 [Laszlo].

[53] In Laszlo at para. 188, the Court adopted the modern restatement of the test set out in Re Schwartz (1970), 10 D.L.R. (3d) 15 (Ont. C.A.) at 32, Laskin J.A., dissenting  on other grounds:

 The testator must be sufficiently clear in his understanding and memory to know,  on his own, and in a general way:

(1) the nature and extent of his property,

(2) The persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4)

(3) the testamentary provisions he is making; and he must, moreover, be capable of (4)

(4) Appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property.

 [54]  As the authorities reviewed by Ballance J. in Laszlo make clear and as is especially relevant to keep in mind in this case, while a medical condition can affect testamentary capacity, capacity is a legal construct, not a medical diagnosis. Further, the   effects of a medical condition on capacity can vary over time

The law presumes that an adult has testamentary capacity unless the contrary is established and the onus (or the burden of proof) lies with the person challenging the testamentary capacity.

If you have an Estate Litigation Issue, contact the Kushner Law Group today to schedule a consultation.


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