.Trevor Todd and Jackson Todd have over 65 years combined experience in handling contested estates including matters dealing with mental capacity required to sign a valid will
Marshall Estate 2026 BCSC 641 summarized the requirements of mental capacity, also known as testamentary capacity needed to sign a valid will :
The test for testamentary capacity is well known. It requires that the will-maker:
a)
Understands that a will disposes of his/her property on death;
b)
Understands the extent of the property being disposed of;
c)
Has in mind family and others who would be natural objects of the will-maker’s bounty; and
d)
Is not suffering from delusions or disorders of the mind that would poison their affection, pervert their sense of right, or prevent the exercise of their natural faculties.
See Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 565, 39 L.J.Q.B. 237 (U.K.).
For a will to be valid, the will-maker must have had the testamentary capacity to make it, it must reflect the will-maker’s actual intentions about how they want to dispose of their property, and it must comply with the requirements of WESA.
The legal principles relevant to this case can be summarized as follows:
a)
Testamentary capacity is not a medical concept or diagnosis but rather a legal construct. Proving testamentary capacity is not overly onerous. Evidence of cognitive deterioration may not, in and of itself, be enough to prove insufficient mental capacity to make a will, even if the will-maker is unable to manage other aspects of his or her life: Bull Estate v. Bull, 2015 BCSC 136 at para. 114;
b)
The assessment of whether a will-maker had testamentary capacity is a highly individualized inquiry and a question of fact to be determined after a consideration of all relevant circumstances: Leung v. Chang, 2013 BCSC 976 at para. 27; aff’d 2014 BCCA 28;
c)
Capacity to make a will is not the same as capacity to manage one’s finances or person. Although declared incapable of managing their person or affairs, on a careful review of the evidence, a person may still possess testamentary capacity to make a valid will: Lavictoire v. Schwarz, 2025 BCSC 2565 at para. 4; and
d)
Simply having an imperfect or impaired memory does not in of itself absent testamentary capacity unless it is so great as to leave no disposing memory. A disposing mind and memory require that one can comprehend, of his or her own initiative and volition, the essential elements of will making, property, objects, just claims to consider, the revocation of existing dispositions and the like. A testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his/her property of which he/she is disposing. Because testamentary capacity is a legal question and not a medical question, a medical opinion, although valuable and relevant, is not determinative of testamentary capacity. A testatrix cannot be found not to have testamentary capacity simply because she chooses to leave her estate in a manner that some might think unkind: Bull Estate at paras. 115–118.
A drafting solicitor bears a heavy burden when drafting a will for a person with compromised capacity: Lavictoire
While the medical evidence may be of assistance, it is only one of many sources of evidence from which the court may consider ascertaining whether a will-maker possesses testamentary capacity: Lavictoire at para. 39.
