Testamentary Capacity: A Legal Test and Construct

Testamentary Capacity: A Legal Test and Construct

Nassim v Healey 2022 BCSC 402 was a dispute over the validity of two testamentary documents –a formal one prepared by lawyers and a hand written will made by the deceased.

The issue of testamentary capacity largely came down to the weight of evidence that the court gave in favour of the lawyers testimony that the deceased was mentally competent to prepare both wills, versus medical evidence that the deceased was demented and incapable of managing his finances.

The case is a good review of the awl of testamentary capacity, knowledge and approval, suspicious circumstances and shifting onus of proof.

The medical diagnosis was a suspicious circumstance that shifted the onus of proof and the evidence of the two lawyers was found to be sufficient to rebut the presumption . The court found that all of the elements necessary for testamentary capacity were present as per the testimony of the lawyers.

The relevant times for assessing mental capacity are when the will-maker gave his or her instructions and when the will-maker executes the will.



While such medical opinions are undoubtedly relevant, it is well established that the court is not obliged to accept them in the face of other more compelling evidence regarding testamentary capacity.

As Ballance J. wrote in Laszlo v Lawton 2013 BCSC 305 at para. 198:

“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), 1995 CanLII 9056 (AB QB), 28 Alta. L.R. (3d) 428 at para. 39 (Q.B.); O’Neil v. Brown Estate, [1946] S.C.R. 622 [O’Neil]; Spence v. Price (1945), [1946] 2 D.L.R. 592 at 595-96 (Ont. C.A.); James at para. 77; Miliwat v. Gagné, 2009 BCSC 1447, aff’d 2010 BCCA 323 [Miliwat].

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, [1974] B.C.J. No. 612 (S.C.); Moore at para. 36; Hoffman v. Heinrichs, 2012 MBQB 133. [Emphasis added, not in original.]”

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