Henderson v Myler 2021 BCSC 1649 discussed inter alia mental capacity to make a will. Determining whether a testator has the mental aka testamentary capacity to make a will
In certain circumstances, a demented person found to be incapable under the Patients Property act may still have sufficient mental capacity to properly instruct a lawyer to prepare a will.
The age of elderly will-makers has never been an element of the test for testamentary capacity. In the leading case of Banks v Goodfellow (1870) LR 5QB 549 on testamentary
Friesen Estate (1985) Man QB 88 sets out the law relating to testamentary capacity in Manitoba, including the heavy onus on a lawyer , notary or will drafter who takes
One of the components of testamentary capacity and a valid will is that the testator must have knowledge and approval of the contents of the will before it is signed.
On of the grounds for appeal in Wilton v Koestlmaier 2019 BCCA 262 was that the trial judge erred in admitting the family doctor’s (GP’S) testimony on mental capacity because
In a testamentary capacity case James v Field 2001 BCCA 267 recognized that the observation of a lay witness may carry as much weight as that of a doctor or
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
It’s important that will drafters be aware of and watch for any suspicious circumstances that might exist when taking will instructions. Preparing a will in the presence of suspicious circumstances
When discussing the law relating to mental capacity much of the focus is often on dementia such as Alzheimer’s disease, while delirium is often a complicating factor for doctors in