When preparing a will, a power of attorney, or personal directive, there are a number of factors that should be present to ensure the document will be considered legally valid should it later be challenged in court. While the documents themselves must contain certain elements to be deemed valid (for example, a will should be signed in the presence of two witnesses), there are other factors which could impact the legal validity of these documents after the fact.

Under section 13 of Alberta’s Wills and Succession Act, a person who makes a will, otherwise called a testator, must be at least 18 years of age, and must have the “mental capacity” necessary to create a will. A person under the age of 18 can make a will in certain circumstances, including if they are married or serving in the Canadian Forces, so long as they have the necessary mental capacity. Capacity is not further defined in the legislation; however, it is one of the most common bases for challenging the legal validity of a will after the testator has died.

It is important to know both how testamentary capacity is defined in Canada, and how capacity is assessed and determined by a court in estate litigation when the testator’s capacity has been called into question.

A Brief History of Testamentary Capacity

Courts throughout Canada have been following the same guidelines for establishing testamentary capacity for over 150 years, as they were originally set out in Banks v. Goodfellow, an 1870 decision from the English High Court. The case involved a challenge of a will signed by John Banks in 1863, who had left the entirety of his estate to his niece, Margaret Goodfellow. Notably, his previous will had left his estate to Margaret’s mother, his sister, to whom he was very close. After his sister died, Banks executed a replacement will leaving his estate to her daughter instead.

Banks died in 1865, and his niece died relatively soon after, in 1867. She was a minor and had no children, nor did she have a will at the time of her death, and so her next of kin was unrelated to the original testator, Banks. If Banks’ will was found to be valid, his estate would go to a person Banks had no connection to (Margaret’s next of kin), rather than to his other nieces and nephews with whom he was close.

How is Testamentary Capacity Defined?

Banks had a history of mental instability, having spent many years living in what at the time was called a “lunatic asylum”. He was known to have paranoid delusions and hallucinations and so his will was challenged in court on the basis that he lacked the testamentary capacity to execute a will. The Court held that the testator’s past diagnoses could not be determinative of his capacity to execute his will. Rather, it was his capacity in the specific moments when he provided instructions regarding the content of the will and then when he signed the document that were indicative of his capacity. In analyzing the evidence, the court set out a set of guidelines to assess the capacity of a testator. Since then, courts throughout Canada have applied these guidelines in cases where capacity is called into question, as follows:

  • The testator must have been able to understand the nature of making a will, and the legal impact of the document;
  • The testator must have been able to understand the extent of the property which they were disposing of;
  • The testator must have been able to comprehend and appreciate the potential legal claims the estate could face; and
  • The testator was not under the influence of medical diagnoses which could limit his ability to understand and appreciate the above at the relevant times.

How Courts Assess Testamentary Capacity in Alberta

When a will is challenged on the basis of lack of testamentary capacity (often combined with claims of undue influence on the testator, usually by someone who stands to gain from the will), the basis for the court’s analysis will be the factors set out in Banks v. Goodfellow. However, it is important to note that courts will begin with the presumption that the testator had sufficient capacity to understand and execute the will as written. Therefore, it is up to the challenger to present evidence in support of their claim that the testator’s capacity was compromised when the will was created and/or executed and as such, should be invalidated.

In many cases, those challenging wills on the basis of a lack of testamentary capacity will provide evidence from the testator’s medical doctors, such as a family doctor, mental health provider, or specialists with knowledge of possible diagnoses and/or treatments. Additionally, lay people who knew the deceased may also provide evidence which speaks to the deceased’s mental state around the time the will was executed.

Courts Review a Variety of Evidence Before Making a Determination

A testator’s diagnosis, such as dementia, on its own is not enough to rebut the presumption of capacity. Just because a person has been diagnosed with an issue that can impact cognition, does not necessarily mean that they lacked capacity at the relevant times. A court will look at the facts of the case to try to understand the testator’s cognitive abilities at the time they gave instructions for the will, and at the time that the will was executed. While medical and anecdotal evidence can be very helpful, it is ultimately up to the court to determine whether there is sufficient evidence to rebut the presumption of testamentary capacity in a specific case.

Referring back to Banks v. Goodfellow, the court in that instance determined that although Banks had a history of mental health issues, at the relevant times, he seemed to fully appreciate the impact and effects of the will he provided instructions for, and ultimately signed. As such, his will was allowed to stand.

Contact the Calgary Estate Planning and Litigation Lawyers DBH Law

At DBH Law, we take pride in the relationships we have built with our clients. We understand your need to provide for your family and loved ones while also minimizing the chances of litigation your estate may face. We help clients develop comprehensive and strategic estate plans including wills, powers of attorney, and personal directives.

We are experienced estate litigators who routinely represent the interests of estates, beneficiaries, and executors in a wide variety of estate disputes. Contact us to see how our estate lawyers can help protect your rights and achieve the best possible resolution to your matter. We can be reached by online or by phone at 403-252-9937.