Delusions and Testamentary Capacity – 4 Factors to Consider

This video is about delusions and testamentary capacity required to make a will. The leading decision of testamentary capacity is Banks versus Goodfellow from 1857 which held that in order to have valid capacity, a person must 1) know what a will is; 2) know what assets he or she has and their value; 3) know who are not to be considering in leaving a bequest; and 4) be free of delusions that affect their ability to decide all of the above.

A person may be crazy but still have mental capacity. In fact, in the leading case of Banks versus Goodfellow, he thought his niece was the devil. On the other hand, he provided for his niece and she was his only next of kin and caregiver and the courts ultimately held that the will was valid.

I’ve had many cases involving delusions and it is difficult to tell when a person has a delusion when one first meets them. What will be obvious in time is that they hold a fixed and very rigid belief that most people would consider to be not be true. The person may in fact be psychotic.

Some of the different types of delusions are grandiose, a person may think they’re a megalomaniac or erotomania, they may feel that they’re in love with a very special public person and that that public person loves them as well. There can be delusions of persecution and delusions of your body doesn’t function at all. You’ve considered yourself for example paralyzed and any combination of those. But again, it’s difficult for the solicitor taking instructions from a person with aversions to actually realize that they may not have proper capacity to do a will.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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