This issue usually arises where a loved one has passed away and the executor presents a Will for probate. Sometimes, family members are surprised that a new Will was drafted (or an old Will was changed) after a certain point in the deceased’s life, and question whether the deceased had capacity to make that Will.

If you are concerned that your loved one did not have capacity to make or vary their Will, you do have options. Here are some things to be aware of:

• Whether or not someone has testamentary capacity to make or alter their Will is different than whether someone has medical capacity.
• The Court will consider whether the Will maker appreciated the nature and effect of the Will, whether they knew the extent of their property and whether they knew to whom they owe a moral obligation (typically who their spouse and dependents are).
• A doctor’s opinion on capacity will not be determinative. It may be critical, but it is not determinative.
• Just because a lawyer was involved in drafting or witnessing a testamentary document will also not be determinative.
• The evidence of other independent advisors and parties can be helpful sources of evidence with respect to a person’s capacity.
• At the end of the day, the test is a legal one – not a medical one.

Cognitive decline or impairment does not necessarily mean a person lacks testamentary capacity. There are cases, for example, where people have been diagnosed with delusions, however the Courts have still found they understood the effect of making a Will and who they owed a moral obligation to so the Will is valid.

If the lawyer is satisfied the person has capacity on the day the will maker gives instructions, even if the person’s capacity slips before they sign the Will, the Will may still be found to be valid if they know they are signing a Will and it complies with their previously given instructions. The question will be whether the will maker knew and approved of the contents of the Will.

Need help?

This area of law is particularly complex, but options exist for family who question the deceased’s capacity. We recommend you contact our office at 604.853.0774 to meet with a member of our Estate Litigation Team as soon as possible as there are strict timelines to bring these issues to light.