Testamentary ( Mental) Capacity
The decision Laszlo v Lawton et al 2013 BCSC 305 is a series of stellar reasons for Judgement by Madam Justice Ballance, including a thorough review of the law of testamentary capacity.
The deceased died in 2008 at age 84 years, which was three years after the death of her husband. In her last will, made in 2000, she left her estate worth more than $1 million primarily to the British Columbia Society for children with Disabilities and the Penticton United Church. Prior to that she had not shown any previous interest or affiliation with either beneficiary, and the will reflecting such a radical shift in her testamentary intention from 1967 and 1986 wills, which benefited her husband’s family unit, was cause for the court to take serious look at the issue of her mental capacity. The court held that the will of 2000 was in fact invalid, as the defendants had failed to prove that she had testamentary capacity when she gave instructions for the preparation of that will, or when she executed. With respect to testamentary capacity, the court stated that timing is key. The first relevant time that the testator must have testamentary capacity is when they give the will instructions, and the second time is when the will was executed. In recognition of the fact that a faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required is pivotal times. As the diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time, evidence of symptoms exhibited by the testatrix both before and after the making of a will, may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time. The court restated the law that the test for testamentary to pass it is not a medical concept her diagnosis, it is a legal construct. Lay witnesses who haveknown the deceased for many years often figure prominently in such analysis. Here the will was a radical departure from the deceased previous wills and the court found that on the face of that the will was not rational as it pertained to the two largest residuary gifts. She had no connection with either charity. There is no evidence that she had had a falling out with her family. Furthermore there was abundant evidence that at the time the deceased gave her will instructions to the notary, and when she executed her will, she was suffering from a constellation of ongoing symptoms, including delusions, paranoia, auditory and visual hallucinations, confusion, compromised short term memory, disorganized thought, zero insight, and impaired judgment. Her symptoms were suggestive of not insignificant mental compromise which were attributable to Alzheimer’s disease. The court concluded that considering the evidence as a whole, the plaintiffs qualified as the only persons who might ordinarily be expected to benefit in any substantial way under the 2000 will. The court was not satisfied that in the will making process, the deceased was capable of turning her mind to the plaintiffs in comprehending on her own initiative and volition their natural claims upon her estate .
The Law of Testamentary Capacity
 In order to make a valid will, a testator must have a baseline level of mental acuity sufficient to appreciate judicially delineated components of the nature and effect of the testamentary act, referred to as testamentary capacity.
 The law of testamentary capacity is heavily rooted in jurisprudence dating back to the middle of the 19th century. In Harwoodv. Ba/cer(1840), 13 E.R. 117 at 120, a case decided in 1840, Lord Erskine provided one of the earliest articulations of the concept which is of continuing influence today:
But their Lordships are of opinion, that in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and, therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.
 Another 19thcentury authority, Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 [Banks], has proved even more enduring. Recognized as the leading authority on the subject of testamentary capacity – a proposition supported by its ubiquity in the case law – the decision contains the classic statement by Chief Justice Cockbum, at 565, setting out the essential requirements for establishing the validity of a will:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties -that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
 One hundred years after Banks, Laskin J.A. (dissenting on other grounds) provided a modern restatement of the test in Re Schwartz (1970), 10 D.L.R. (3d) 15 at 32 (Ont. C.A.):
The testator must be sufficiently clear in his understanding and memory to know, on his 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 …
 Timing is key. In general, the first relevant time that testators must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions: Parker v. Felgate (1883), 8 P.D. 171; Brownhill Estate (1986), 72 N.S.R. (2d) 181 (Co. Ct).
 The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: see generally, Smith v. Tebbett (1867), L.R. 1 P. & D. 354 at 398; Kri v. Patterson,  O.J. No. 1817 (Surr. Ct.); Fawson Estate (Re), 2012 NSSC 55; Moore v. Drummond, 2012 BCSC 170 at para. 47 [Moore]; Coleman v. Coleman, 2008 NSSC 396 [Coleman].
 To lack testamentary capacity does not mean that the testator must be in a perpetual state of substandard competence. Seemingly rational persons may be without it, while seemingly compromised persons may possess it. A testatrix’s cognitive and psychological state is amorphous and seldom static. It may change and fluctuate slightly or wildly, such that at times she is not of sound mind, while at other times she is perfectly lucid. Accordingly, a will made by a compromised testatrix executed during a lucid interval may still be valid.
 Implicit and explicit in the jurisprudence is an acknowledgement of the complexity and subtleties of diminished cognitive functioning and the way in which we perceive, present to and interact with the world around us. For example, although it is recognized that dementia can impair a testator’s mental powers such that he is not capable of making a will, a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity: Royal Trust Corp. of Canada v. Ritchie, 2007 SKCA 64 at para. 13; Otto v. Kapacila Estate, 2010 SKCA 85 at para. 36 [Otto]; Moore at para. 36. Similarly, a person who is judicially declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will: Otto at para. 36; Royal Trust Co. v. Rampone,  B.C.J. No. 612 (S.C.); Moore at para. 36; Hoffman v. Heinrichs, 2012 MBQB 133.
 The standard of mental capacity required to make a valid will does not exclude eccentric, frivolous, capricious, absurd or unfair wills: Skinner v. Farquharson (1901-1902), 32 S.C.R. 58 at 59 [Skinner]; Beal v. Henri (1950),  1 D.L.R. 260 at 265 (Ont. C.A.).
 It is well-settled that a testator’s ability to provide rational responses to questions or follow a learned pattern or habit is not conclusive of capacity. The reasons of Mr. Justice Rand writing for the majority of the Supreme Court of Canada in the important decision of Leger et al v. Poirier,  S.C.R. 152 at 161, remain instructive of the point:
But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. 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, revocation of existing dispositions, and the like…
 His Lordship, at 161-62, surveyed a number of authorities in support of that proposition:
Marsh v. Tyrrell and Harding:
It is a great but not an uncommon error to suppose that because a person can understand a question put to him, and can give a rational answer to such question, he is of perfect, sound mind, and is capable of making a will for any purpose whatever; whereas the rule of law, and it is the rule of common sense, is far otherwise: the competency of the mind must be judged of by the nature of the act to be done, and from a consideration of all the circumstances of the case.
Quoting from the Marquess of Winchester’s Case, Sir John Nicholl adds:
By the law it is not sufficient that the testator be of memory, when he makes his will, to answer familiar and usual questions, but he ought to have a disposing memory so as to be able to make a disposition of his estate with understanding and reason.
 Following his review, his Lordship concluded, at 162:
Merely to be able to make rational responses is not enough, nor to repeat, a tutored formula of simple terms. There must be a power to hold the essential field of the mind in some degree of appreciation as a whole, and this I am satisfied was not present here.
 The issue of whether a testator has the requisite capacity to make a will is a question of fact to be determined in all of the circumstances: Knox v. Trudeau 2001, 38 E.T.R. (2d) 67 (Ont. Sup. Ct. J.). The assessment is a highly individualized and fact-specific inquiry. As most cases are unique on their facts, appellate courts will not overturn a finding as to capacity unless the trial judge has made a palpable and overriding error: James v. Field, 2001 BCCA 267 at para. 71 [James].
 Testamentary capacity is not a medical concept or diagnosis; it is a legal construct. Accordingly, scientific or medical evidence – while important and relevant – is neither essential nor conclusive in determining its presence or absence. Indeed, the evidence of lay witnesses often figures prominently in the analysis. Where both categories of evidence are adduced, it is open to the court to accord greater weight to the lay evidence than to the medical evidence, or reject the medical evidence altogether: Baker Estate v. Myhre (1995), 28 Alta. L.R. (3d) 428 at para. 39 (Q.B.); O’Neil v. Brown Estate,  S.C.R. 622 [0’Neil\\ Spence v. Price (1945),  2 D.L.R. 592 at 595-96 (Ont. C.A.); James at para. 77; Miliwat v. Gagne, 2009 BCSC 1447, affd 2010 BCCA 323 [Miliwat].
 Courts may therefore reach a conclusion regarding capacity that conflicts with a medical diagnosis or the outcome of an MMSE or other medical test. In Lowery v. Falconer, 2008 BCSC 516, the family doctor examined the testatrix shortly before she signed the will and concluded that she was competent. Several months later, the doctor performed an MMSE and confirmed that she was capable of managing her own financial and legal affairs. Despite these medical findings, the court concluded that the testatrix lacked capacity and set aside the will. In Shkuratoffv. Shkuratoff, 2007 BCSC 1061 at para. 49, the court expressed apprehension about reliance on the score results of the MMSE in the absence of a robust explanation of the role that