I am sure most estate litigators have had a deceased parent accuse various family members of stealing cups, teaspoons and usually other minor things.
If so the dispirited and disinherited children of the deceased may have a good argument that the will should be set aside on the basis of insane delusions.
Irrational beliefs, falling short of producing general insanity, and which have no relation either to the testator’s property or to the persons that might be expected to benefit, have no bearing on the question of testamentary capacity.!
Accordingly, a delusion which affects testamentary capacity must be one of “insanity”. It cannot be attributed to misinterpretation, capricious whims or idiosyncrasies.
A delusion is more than getting the facts wrong- it is a persistent belief in facts that no rational person would hold to be true , and thus exists as real only in the mind of the believer.
Banks. v. Goodfellow (1870), L.R. 5 Q.B. 549 at 560 (C.A.). It was beyond doubt that the testator
was at times of unsound mind, as he had spent time in an insane asylum. He was always subject
to certain fixed delusions that he was molested by evil spirits, but he managed his own affairs
and arranged for making the will himself. The court upheld the will because of the absence of
any reasonable connection between the delusions and the dispositions made by the testator
- A delusion must have influenced the testator’s will in disposing of his or her
property or brought about a disposal that would not have been made absent thedelusion. Thorndycraft v McCully 1994 OJ 1857
- Examples include persistently mistaking one person for another, harboring paranoid
suspicions toward a potential beneficiary, or falsely believing that potential beneficiaries are
already well provided for when the testator knew or should have known that this was not the
In Wilson v Churchmack 1998 OJ 3733 the delusional belief of the testator that her family was stealing from her was sufficient to vitiate capacity.
- Lucid interval.
Delusions that at times produce general insanity and incapacity to make a will
may be latent at another time, so that a good will may be made during a lucid interval. The fact
that the will is of a rational character (particularly if it was prepared by the testator him or
herself) is evidence that it was made during a lucid interval.
The time in question is the time at which the will or other testamentary document is executed. Re Marshall (1920) 1 CH 284.1
Aversion to Family Members.
An aversion to a spouse, children, or other relatives that the testator might be expected to benefit may indicate a lack of sufficient capacity, and wills are often attacked on this basis by disappointed relatives.
However, a blood relationship alone does not give a family member the right to object to a gift to a stranger, and it must be shown that the testator’s false beliefs about the family amounted to delusional insanity that affected the actual dispositions.
In Re Barter (1939) NBJ No.1 ( NBCA) a will was refused because of the delusion that the daughter had wired the testator’s chair to give him electric shocks.
If the aversion can be explained, or if it is found that the testator was merely
feigning some belief in order to rationalize his or her failure to provide for his or her family, then there is no delusion.
Similarly In Dynna v Grant (1980) SJ No. 84 Sask. R. 135, ( Saks C.A.) mere dislike of a person of a particular ethnic group is an eccentricity and does not constitute an insane delusion
As there must be a reasonable connection between the delusions and the bequests in the will, a bequest to a stranger may be good if the will-maker, apart from any delusions, had no intention to provide for the family in any event.
In Lorenzo v Molinari 33 ETR (2d) 136 made a deliberate decision to exclude certain potential beneficiaries , and the exclusion was not based upon mistaken beliefs about previous gifts to them.
In such cases, the will stands, and aside from legislative provisions for the support of dependents or for a division of matrimonial assets on death the family has no redress.