Mental Capacity Required For a Will Is the Same as Inter Vivos Transfer

 Mental Capacity Required For a Will


Brydon v Malamas 2008 BCSC 749 at paragraph 47 confirms that the test for mental capacity for an inter vivos transfer ( while  alive), is the same as the test of testamentary capacity, including the shifting of the burden of proof to the propounder of the will once suspicious circumstances are presented from the party attacking either the will or the inter vivos transfer.


The Court stated:

[46]            The parties seemed to agree that the mental capacity required by law to enter into the inter vivos transactions completed by Stella on October 12 and 13, 2004, was much the same as the mental capacity required to make a valid will.  There is some authority which supports that common sense proposition, and I was referred to the following cases on this point:  Keljanovic Estate v. Sanseverino 2000 O.J. No. 1364 (Ont.C.A.) at paragraph 37; Mikita v. Lick [1992] B.C.J. No. 935 (B.C.S.C.); and Johnson v. McArton [1986] B.C.J. No. 2227 (B.C.S.C.).  It is agreed that the burden of proving that the will of October 19, 2004 is valid is on the defendants.  However, the defendants say that the onus of proof is on the plaintiff to negative mental capacity in respect of the inter vivos transactions.


 While the standard of proof remains the civil standard, where suspicious circumstances exist, the proponent must prove testamentary capacity to a higher degree of certainty than a mere fifty-one percent probability.  In such a case:

The extent of the proof required is proportionate to the gravity of the suspicion….

See Re Martin; MacGregor v. Ryan, [1965] S.C.R. 757 at p. 766 (cited in Vout v. Hay at par. 24).

The Judge found that the deceased was mentally incapable due to delusions:

The inter vivos gifts

[226]        I have earlier referred to several authorities which suggest that the legal test for mental capacity to make a will is similar to the test for mental capacity required to enter into and complete the inter vivos transactions completed by Stella on October 12 and 13, 2004.  I would also note that Sedgewick J. in Skinner v. Farquharson made reference to this similarity (with apparent approval) as follows:

…In Jenkins v. Morris, 14 Ch. D. 674, the same principle was applied to a contract inter vivos the rule being that when the existence of an insane delusion is once established the question to be determined is whether it had any, and if any what, influence upon the performance of the act or transaction which for the time being is under consideration.   ….

[227]        Having decided that the defendants have failed to prove that Stella had testamentary capacity, is that conclusion sufficient to invalidate the bank transactions on October 12, and the land transfer on October 13, 2004?  Or should it be presumed that Stella had the mental capacity required to by law to complete those transactions, and require the plaintiff to prove affirmatively that Stella did not have sufficient legal capacity? 

[228]        It seems to me that the answers to these questions might be found in the rules of law relating to inter vivos gifts.  The general rule is that, where a person makes a gift of money or property to some person other than his or her spouse or child, a presumption of resulting trust is created.  This presumption casts an onus on the recipient of the gift to rebut the presumption, which may be done by proving that the donor of the gift intended that it should be a gift.  See Pecore v. Pecore [2007] 1 S.C.R. 795 at paragraphs 22-26 and 43-44.  At paragraph 53, Rothstein J. (speaking for eight members of the Court) stated:

[53]      Of course, the presumption of a resulting trust means that it will fall to the surviving joint account holder to prove that the transferor intended to gift the right of survivorship to whatever assets are left in the account to the survivor.  Otherwise, the assets will be treated as part of the transferor’s estate to be distributed according to the transferor’s will.

[229]        It is apparent that, when Stella made Mary and Jim Malamas joint account holders with her, and made them the beneficiaries of her R.R.S.P.; and when Stella transferred a joint interest in her house and land to Mary, there was no consideration given to her.  They were not her spouse or child.  Consequently, I think the transactions should be examined in accordance with the rules of law relating to inter vivos gifts.  An unusual feature of this case is that Stella purported to deal with her bank accounts and her R.R.S.P. in her will, after already having made gifts of them to Mary and Jim Malamas the previous day (although Jim Malamas did not finalize the bank account transfers to him until October 20).  Brian Gregory of course knew that Stella had transferred her land to Mary, and so her real property was not included in the will.  But he knew nothing of what Stella had done the previous day and so he drew a will based on her instructions.  (As I have mentioned, some of Stella’s statements to Mr. Gregory on October 13, indicate that she may have forgotten some or all of what she did the previous day at the bank.)  Stella seemed unaware that there was not much left for her dispose of by will, in light of what she had already done.

[230]        As I have previously found, the evidence establishes that Stella appeared to know what she wanted to do in respect of these matters, appeared to know what she was doing, and to approve of what she was doing when she completed all of these transactions.  If all the defendants had to do in order to rebut the presumption of resulting trust, was to prove that Stella intended to make gifts to them, they would easily succeed.  But I think the issue is much more complex than that in the circumstances of this case, where testamentary capacity has not been established for the same time period which includes these inter vivos transactions.  In my opinion, in order to rebut the presumption of resulting trust, the defendants must prove not only that Stella intended to make gifts, but also that her intention in this regard was not affected by any insane delusion.  In other words, I think that the defendants must prove the same facts required to establish that Stella had testamentary capacity.  This of course, they have failed to do.  It is therefore my opinion that the presumption of resulting trust carries the day, and the gratuitous inter vivos gifts must be set aside.

[231]        If my analysis of this issue is wrong, I would find (as previously alluded to) that the evidence proves that the main reason why Stella did what she did, was because of her delusion that the plaintiff had broken a promise she made to Stella, not to sell the Vine Street property.  That finding leads inevitably to the conclusion that the plaintiff has proved on the balance of probabilities that Stella was not mentally competent at the time of the challenged transactions.  In my opinion, the standard of proof that would be required (assuming that the plaintiff bears the onus) is simply, “more probable than not.”

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