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Testamentary Capacity: The Modern Restatement

Testamentary Capacity: The Modern Restatement

The modern restatement of the test for testamentary capacity means that the will maker is sufficiently clear in his/her understanding and memory to know, on his/her own, and in a general way:

1) The nature and extent of his property;
2) the persons who are the natural objects of his bounty and
3) the testamentary provisions he is making, and he must moreover, be capable of
4) appreciating these factors in relation to each other, and
5) forming an orderly desire as to the disposition of his property.

That summary of the five factors of testamentary capacity is from Re Schwartz (1970) can DLR 15(Ont.CA), at 32 where the court provided a modern restatement of the test for testamentary capacity from the seminal case of Banks v Goodfellow (1870) LR5 QB 549.

Re Schwartz in turn was adopted by the Supreme Court of British Columbia in the decision Lazlo v Lawton 2013 BCSC 305 .

Laszlo at paragraph 189 stated that timing is the key, with there being two relevant time factors:

1) The testator must have testamentary capacity when he or she give will instructions;
2) and must have testamentary capacity when the will is executed.

The court in Lazlo went on to recognize that faltering mental capacity is prone to fluctuate and that the authorities permit variation of the degree of capacity required at these pivotal times.

For example, when a testator is competent to provide will instructions, but is not competent at the time required to execute the will, the will may still be valid so long as at the time of execution, the testator was capable of comprehending that he or she was signing a will drawn in accordance with his or her previous instructions. Re Brownhill Estate (9186) 72 NSR (2d) 181

Assessing whether a will maker possesses testamentary capacity is a question of fact and is a highly individualized inquiry.

The will maker must have had the mental capacity to appreciate and comprehend the nature and effect of the essential elements of the testamentary act, including an appreciation of the claims of persons who are the natural objects of his or her estate, as well as an appreciation of the extent of the property to be disposed.

As the Laszlo decision stated at paragraph 242, the criteria requiring the will maker to understand the nature and extent of the property being disposed of as a common area of uncertainty ( the value of one’s estate). This has particularly been the case in areas like Vancouver where property values have dramatically increased for an elderly long time property owner to the point where they are almost unbelievable.

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