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.

This is because of the concept of the will maker having “ good days and bad days“, namely lucid intervals sufficient to have the necessary mental capacity.

Royal Trust Co. v Rampone (1974) 4 WWR 735 involved a second codicil that was challenged on the ground of mental capacity. There had been a declaration of the testator being mentally incapable of managing his affairs prior to signing the codicil.

The medical evidence was that the cause of the will maker’s infirmity due to arteriosclerosis was to the effect that the disease impaired amongst other things judgment and memory.

Prior to signing the will the deceased had entered into a very imprudent business transaction and further admitted that his business affairs reproving too much for him to the extent that he had turned some of them over to a daughter.

The evidence of members of his family and others close to him was that he had good days and bad days, and that when he made the codicil in question he was perfectly lucid and appeared to fully understand what he was doing. The effect of the codicil was to bring into his will two sons whom he had earlier passed over under a mistake of fact.

The medical evidence was that the will maker was competent to make a will, while at the same time was unable to manage his own affairs.

The court held that where a declaration of mental infirmity had been made prior to execution of the testamentary document, a particularly heavy onus was upon those propounding the will.

But incapacity to manage business affairs generally was not necessarily indicative of incapacity to make a simple codicil, though the circumstances must be looked at with care.

In Can. Permanent Toronto General Trust Co. v Whitton (1965) 51 WWR 484 at 492 the court stated:

“ There is an onus on the propounder of the will to prove testamentary capacity. Surely that onus is heavy, or when at the time of the execution of the will the testator is held by the court to be incapable of managing his or her affairs.”

In deciding upon the capacity of the testator to make his or her will, it is the soundness of the mind and not the particular state of the bodily health that is to be attended to.

The latter may be in a state of extreme imbecility, and yet he or she may possess sufficient understanding to direct how his or her property shall be disposed of; his or her capacity may be perfect to dispose of his or her property by will, and yet very inadequate to the management of other business, such as for its this to make contracts for the sale or purchase of property.

In O’Neil v Royal Trust CO. (1946) SCR 622, at 628 the court stated after a review of the whole of the evidence, that it fell short of establishing that because a person is unable to manage his or her affairs that he or she is incompetent to make a will.