Testamentary Capacity

One way of overturning the Will is to show the deceased lacked testamentary capacity at the time the Will was made.

Banks v. Goodfellow (1870 LR 5 QB 549), sets out four criteria for the test of mental capacity to make a Will.

  1. The testator understands he is making a Will and that a Will disposes of property upon his death.
  2. The testator must know the assets he disposes of; that is, he understands the nature and extent of his property.
  3. The testator understands and appreciates the claims to which he ought to give effect, that is, those who have an appropriate claim upon his bounty.
  4. The testator must be free of delusions that may affect his decision.

In Leger v. Poirier (1944 3 D.L.R. 1 SCC), the Supreme Court of Canada said that a “disposing mind and memory” is:

…capable to comprehend, of its own initiative and volition, the essential elements of Will making, property, objects, just claims to consideration, revocation of existing disposition, and the like

In Bates v. Finley (2002 BCSC 159), the court held:

…[The testator] ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.

The burden of proving testamentary capacity is on the party trying to support the Will, but there is 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 appeared to understand it. That presumption may be rebutted by evidence of suspicious circumstances, in which case the burden reverts to the party supporting the Will to prove testamentary capacity on the balance of probabilities (Vout v. Hay, SCC 1995).

The “suspicious circumstances” must do more than create “a general miasma of suspicion;” they must create “a specific and focused suspicion that the testator may not have known and approved of the contents of the will.” (Clark v. Nash BCCA 1989.)

Ultimately, medical evidence regarding the capacity of the testator at the time the Will was made is important as is the impression of family and friends that knew the testator at the time of the Will.

Where there are suspicious circumstances, the burden is on party seeking to have the Will deemed valid.