Capacity To Make a Will

Capacity To Make a Will

 

A person making a Will must understand:

 

The nature of the act of making a Will:

a. That he will die;

b. That the Will will come into operation on his death, but not before; and

c. That he can change or revoke the Will at any time.

 

2. The effects of the Will:

 

a. Who the executor is, and possibly why he or she is being chosen as
executor;

b. Who gets what under the Will;

c. Whether a beneficiary’s gift is absolute, or whether it is limited or
conditional in some way (for example a life interest, or a legacy
contingent on attaining a particular age);

d. Whether he has already made a Will and, if so, how and why the new one
differs from the old one.

 

The extent of the property being disposed of:

a. The extent of the property being disposed of;

b. The fact that any jointly owned property might automatically pass to the
other joint owner, regardless of anything the will says;

c. Whether there’are benefits payable on his death which would be
unaffected by the terms of the will: for example, the proceeds of an
insurance policy, or pension rights;

d. Whether he has any debts, and how they are to be paid

 

A person making a Will should be able to comprehend and appreciate the claims
to which he ought to give effect. Why are some beneficiaries preferred and others
possibly excluded? For example:

a. Some may be better provided for than others;

b. Some may be more deserving than others because they have been kind to
the testator;

c. Some may have upset, offended or disregarded him;

d. Some may be in greater need than others because of, say, their age or state
of health.

e. It is essential that no delusions should influence the testator and bring
about a disposal of his property which would not have been made if he
was not mentally disordered.

 

5. The testator should not be regarded as lacking testamentary capacity merely because he makes a will which would not be made by a person of ordinary prudence.

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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