Testamentary Capacity

In order to make a valid will, a testator must have testamentary capacity. This is a minimum level of mental acuity sufficient to appreciate the nature and effect of the act of making the will. The components of the legal test applied to determine whether a testator had testamentary capacity at the time a will was made is set out in various cases.

The law in the area of testamentary capacity dates back to the 19th Century. Early on, the Court recognized the need for a testator to comprehend his estate and who he might include or exclude from sharing in it. The testator must understand the nature of his testamentary act and its effects; the extent of his property; the claims that the testator should give effect to; and no disease or delusion should poison or pervert the testator’s mind. The testator must be able to form an orderly desire as to the disposition of his/her property.

Timing is key to assessing testamentary capacity. Testamentary capacity must exist when instructions are first given to prepare the will and when the will is executed. If a testator was competent to give instructions and then lost competency before signing the will, the Court might give effect to the will.

Evidence of symptoms of diminishment in mental capacity both before and after making the will are relevant to consider. The state of capacity may fluctuate over time and not remain static

The assessment of testamentary capacity is a subtle and complex analysis. Dementia standing alone may not mean that a testator lacked testamentary capacity. A person declared incompetent or suffering from a psychotic condition may have testamentary capacity at the relevant time. A person may make an eccentric or unfair will.

A testator’s ability to answer questions rationally or follow a pattern of behaviour does not of itself dispose of a capacity issue. Incapacity can be accompanied by a deceptive ability to answer questions regarding usual topics in a rational manner.

The issue of whether a testator has capacity is an individualized question of fact to be assessed in all the unique circumstances. Appeal Courts will not overturn trial judges on this factual question unless there is an overriding and palpable error.

Testamentary capacity is a legal construct, not a medical concept. Medical and scientific evidence is relevant and important but, not conclusive. Lay witnesses often figure importantly in the analysis. The Court may reach a conclusion which is in conflict with medical opinion.

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