By Patrick McMurchy
The issue of testamentary capacity often arises in estate litigation. With the passage of the Wills, Estates and Succession Act, (“WESA”), in 2014, the issue is likely to be subject of increased estate litigation in B.C.
The reason for this is that now, under WESA, informal records and documents may be “cured” of their defects and be treated by the courts as will-like in their effect.
Prior to WESA, only formally executed wills were given that status. It was presumed that these formally executed wills were made by the will-maker with full capacity and knowledge because of the safe-guards the formalities provided. Since WESA, notes on scraps of paper, written on grocery store receipts and the like have been offered up as proof of a person’s testamentary intention.
The determination of whether the deceased had the necessary testamentary capacity is a question of fact, is highly individualized, and all the circumstances surrounding the making of the will need to be considered.
What is required to establish testamentary capacity is that the deceased had a “baseline level of mental acuity” or a “disposing mind and memory”. This means the deceased had a sufficiently clear understanding and memory to know, on their own, and at least in a general way: 1. the nature and effect of a document; 2. the nature and extent of their property; 3. the extent of what they are giving under the document; 4. the persons they might be expected to benefit under their estate, and 5. the nature of the claims that may be made by a person they are excluding.
Testamentary capacity is a legal determination and is not a medical concept. Medical evidence is valuable and relevant, but the evidence of non-medical witnesses is given significant weight, and courts have made determinations on capacity that conflict with a medical diagnosis or the outcome of a medical test.
The time for assessing capacity may be especially important because mental capacity may falter or fluctuate over time. A person may be of unsound mind at times while at other times they may be perfectly lucid. The will or document may have been made during a lucid interval. So, a diagnosis of dementia, standing alone, does not automatically lead the court to a conclusion that the person was incapable and even a person who is judicially declared incapable of managing their affairs may still have the capacity to make a valid testamentary disposition.
There are two relevant times to look at testamentary capacity, first when the instructions are given to prepare the document, and when the document is actually signed. Difficulties arise in the context of informal records or documents: the document, for example, may not be dated or signed.
For example, instructions may have been given when the person was competent to give them, but by the time the document is finally signed that capacity may have diminished. If the person was capable of comprehending that they’re signing a document in accordance with their previous instructions, the will or document may still be upheld as valid.
The party seeking to uphold the will or document has the onus to prove the deceased had the requisite capacity.
Two legal presumptions may be used to help discharge the onus to prove capacity.
First, there is the general presumption that an adult has the requisite capacity. Second, in the specific context of estate litigation, where the will was formally executed according to the requirements of the Wills, Estates and Succession Act and, before it was signed, it was read by the will-maker or read to the will-maker, who appeared to understand it, it is presumed to be valid and that the will-maker had the requisite capacity.
These presumptions are themselves rebuttable by evidence of “well-grounded, specific and focused suspicions”, arising from circumstances that tend to call into question the capacity of the deceased at the time of preparation of the document, or which may tend to show that the free will of the deceased was overborne by acts of undue influence, coercion, or fraud.
Where suspicious circumstances arise, the party seeking to uphold the will or document then re-assumes the legal burden of establishing both capacity of the deceased and the deceased’s knowledge and approval of the contents by their will or testamentary disposition by way of an informal document.
Suspicious circumstances have been found to exist in circumstances that are not necessarily sinister in nature. It could simply arise from evidence that the deceased’s doctor deemed them no longer capable or diagnosed them as suffering from dementia around the time the document was prepared and signed.
Commonly occurring themes of suspicious circumstances are where a beneficiary is instrumental in the preparation of a will or where a will favours “someone who has not previously been the object of [the testator’s] bounty and does not fall within the class of persons testators usually remember in their wills, that is to say their next of kin.”
This short article is intended to give the reader a general understanding of some of the basic principles respecting testamentary capacity. It is not intended as legal advice. In estate litigation, outcomes very much depend on the specific facts of each case.