Trevor Todd and Jackson Todd have over 65 combined years of practice in handling estate litigation disputes, including proving the validity of a contested will.
Re McNish Estate 2026 BCSC 2002 was a probate action argued with affidavits concerning the validity of the deceased’s will. His wife brought an application to prove the decased’s will in solemn form that was contested on the basis that the deceased lacked mental capacity to sign a valid will.
The court reviewed the law relating to proving a will in solemn form including the law of rebutting suspicious circumstances and found that the will was invalid due to lack of mental capacity on the part of the deceased.
The doctor of the deceased filed an affidavit that the deceased had very poor short term memory and his driver’s license was revoked. The lawyer who drafted the will could not find his will file and had limited memory of the matter and the court put very little weight on his testimony .
The court held that the petitioner failed to rebut the presumption of validity as a result of the suspicious circumstances raised concerning the mental capacity of the deceased.
THE LAW
The legal burden of proving due execution of the will, that the testator knew and approved of the contents of the will, and testamentary capacity is with the party propounding the will: Laszlo v Lawton, 2013 BCSC 305 at para 201 [Laszlo].
[19] The applicable legislative formalities of a will are set out at s 37 of WESA as follows:
- a) the will must be in writing;
- b) the will must be signed at its end by the will-maker in the presence of two or more witnesses present at the same time; and
- c) the witnesses must sign the will in the presence of the will-maker.
WESA, s 37.
[21] When a will is executed in accordance with the statutory formalities after having been read by or to the testator, who appeared to understand it, the propounder is aided by a rebuttable presumption that the will-maker possessed the requisite knowledge and approval, and testamentary capacity: Jung Estate v Jung Estate, 2022 BCSC 1298 at para 37.
[22] To rebut the presumption of validity, the burden is on the challenger to prove on a balance of probabilities well-grounded suspicions, known as “suspicious circumstances”, which generally relate to one or more of the following circumstances:
- a) surrounding the preparation and execution of the will;
- b) calling into question the capacity of the will-maker; or
- c) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud.
Laszlo at paras 202, 205.
[24] A “general miasma of suspicion that something unsavoury may have occurred” will not be enough. In order to elevate general suspicion to the threshold of suspicious circumstances, the evidence, if accepted, would tend to negative knowledge and approval or testamentary capacity: Laszlo at para 206; Allart Estate v Allart, 2014 BCSC 2211 at para 35.
[25] If the court is satisfied that suspicious circumstances exist, the presumption is rebutted and the propounder of the will reassumes the legal burden of establishing that the will-maker knew and approved of the contents of the will and that he or she had testamentary capacity: Laszlo at para 204.
The most frequently quoted test for testamentary capacity is the English decision of Banks v Goodfellow (1870), LR 5 QB 549 at p 567 (England), which remains relevant today. To prove that a will-maker had testamentary capacity, the proponent of the will must lead evidence that establishes that the will-maker:
- a) understood the nature of the act of making a will and its effects;
- b) understood the extent of the property of which he or she is disposing;
- c) was able to comprehend and appreciate the claims to which he or she ought to give effect; and
- d) had no disorder of the mind or insane delusion that influenced his or her making of the will.
See also Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876; Laszlo at para. 188; and Halliday v Halliday Estate, 2019 BCSC 554 at para. 26 [Halliday].
[82] This test was restated in modern times as the will-maker must be sufficiently clear in his or her understanding and memory to know, on their own:
- a) the nature and extent of their property;
- b) the persons who are the natural objects of their bounty;
- c) the testamentary provisions they are making; and
- d) they must be capable of appreciating those factors in relation to each other and forming an orderly desire as to the disposition of their property.
Laszlo at para 188.
[83] While will-makers are not expected to know the composition of their estate assets and their respective values in an exact manner “with the metronomic precision of an accountant”, they must have an appreciation of the general nature of their assets and an understanding of their extent. An appreciation of the value of their assets, expressed either in terms of dollars or quantitatively, will suffice: Laszlo at paras 242-249; Henderson v Myler, 2021 BCSC 1649 at para 107.
[84] Testamentary capacity is neither a medical concept nor a diagnosis, but rather is a legal construct. While medical evidence may be relevant it is not conclusive in determining the existence of testamentary capacity at the critical times: Laszlo at para 198; Halliday at para 29. Whether a will-maker possessed testamentary capacity at the necessary times is a question of fact, to be determined from all of the circumstances: Laszlo at para 197. A critical and meaningful analysis is required to determine testamentary capacity: Halliday at para 29. The authorities establish that in assessing testamentary capacity, the evidence of the drafting solicitor, who took instructions and prepared the will, is often given considerable weight, particularly where that person is an experienced wills and estates lawyer: Benekritis v Benekritis Estate, 1998 CanLII 3816 (BC SC), [1998] BCJ No. 171 at paras 41-43.
[85] Testamentary capacity requires a “disposing mind and memory” which is described as “one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing disposition, and the like …”: Laszlo at para 194, quoting from Leger v Poirier, 1944 CanLII 1 (SCC), [1944] SCR 152 at 161 [Leger]. Merely being able to provide rational responses is not sufficient or conclusive of capacity; rather, “there must be a power to hold the essential field of the mind in some degree of appreciation as a whole”: Leger at 162.
[86] Justice G.P. Weatherill noted in Bull Estate v Bull, 2015 BCSC 136 at para 114 [Bull] that the test for testamentary capacity is not “overly onerous” and that the presence of cognitive deterioration may not preclude testamentary capacity. Testamentary capacity may be present even if the will-maker is incapable of managing other aspects of his or her life: Halliday at para 28. However, a disposing mind and memory is “one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revoking dispositions and the like”: Moore v Drummond, 2012 BCSC 1702 at para 34, citing Leger at 161; Bull at para 115.
[87] There is a distinction between testamentary capacity to make a will and knowledge and approval of the contents of a will. Chief Justice Hinkson quoted from John Poyser’s book Capacity and Undue Influence (Toronto:
Carswell, 2014) at p 235 in Halliday (at para 178) in distinguishing between testamentary capacity and knowledge and approval:
Lord Justice Moore-Bick went on to comment on the distinction between testamentary capacity, on the one hand, and knowledge and approval on the other, giving an elegant formulation to distinguish between them (emphasis added):
The use of the expression “knowledge and approval” is liable to give the impression that the court is concerned with whether at the time he executed the will the testator must be able to reconsider all the dispositions he has made. That would require testamentary capacity, but that is not what is meant by the convenient expression “knowledge and approval”. Modern authorities recognize that a clear distinction is to be drawn between testamentary capacity and knowledge and approval. As the judge observed in this case …, testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve the choices that have already been made.
Paraphrasing a different comment elsewhere in the reasons for decision, the twin requirements of knowledge and approval in testamentary capacity ensure that the will is the product of the conscious intention of a sound mind. Knowledge and approval is the “conscious intention” in that formula.
[88] Knowledge and approval requires more than the will-maker “simply knowing the contents of the will” but requires that the will-maker is “aware of the magnitude of the residue of her estate and must ‘appreciate the effect’ of the disposition of her estate”: Geluch v Geluch Estate, 2019 BCSC 2203 at para 127; citing Russell v Fraser (1980), 1980 CanLII 737 (BC CA), 118 DLR (3d) 733 (BCCA) at para 12.
