Mental Capacity To Make A Will

Occasionally a person’s mental capacity to make a valid will is questioned. The testator (the person who made the will) may have been very old when they made it. Or perhaps they were losing their memory or had other cognitive difficulties associated with growing old.

So when does a person have testamentary capacity, i.e. sufficient mental capacity to make a valid will? The BC Supreme Court recently dealt with this question.

David (names changed) made his last will in January of 2015, when he was 93. He left his modest estate to Bob and Elaine, two of his three children, but excluded his first child, Peter. A couple of months later he passed away.

Soon after, Peter (and Peter’s daughter Mary) challenged David’s testamentary capacity to make this will in court.

A couple of years passed without much progress in Peter’s lawsuit, so Bob and Elaine asked the court to determine if the will was valid. Peter objected; he wanted more time to investigate hospital records about some cognitive problems (like confusion) that his father had experienced in hospital following hip surgery in 2014.

Whether a person has testamentary capacity is a legal issue, said the court, though medical opinions are often helpful and relevant. In this case, the court already had enough information (including from David’s family doctor and the lawyer who independently saw David and prepared his last will) to decide this question.

The legal test boils down to a few key points, none of which are overly demanding, noted the court. A person has testamentary capacity if they basically understand what making a will is about and they have enough “disposing memory” – meaning they can recall the nature and extent of their assets, who might naturally expect to benefit under the will, and who might potentially object (and challenge the will) if cut out from the will.

So long as the testator is able to meet this test, they can make a valid will – even if, for example, they might not be able to manage their own financial affairs or personal care. Specifically, you can have testamentary capacity despite some memory loss, occasional confusion and even emerging dementia.

The legal and medical evidence in this case showed that by 2015, David had some memory loss, was occasionally confused and had some cognitive deficits that could indicate the beginnings of dementia. But the evidence also showed that he understood what his will covered, what his assets were, which children he was leaving an inheritance to and whom he was leaving out.

The court decided David met the legal test for making a valid will (i.e. he had testamentary capacity) and declared the will valid. (Peter could still go to court to attempt to change the will, though valid, to try and get something from his father’s estate.)

While getting a lawyer to prepare your will is always a good idea, it’s especially important where there may be concerns about diminished mental capacity.

Written by Janice and George Mucalov, LL.B.s with contribution by COBBETT & COTTON. This column provides information only and must not be relied on for legal advice. Please contact COBBETT & COTTON for legal advice concerning your particular case. Names of the parties in reported cases have been changed or removed to protect their identity. Lawyer Janice Mucalov is an award-winning legal writer. “You and the Law” is a registered trade-mark. ©Janice and George Mucalov.

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