Testamentary Capacity, Knowledge & Approval

Testamentary Capacity: Knowledge & Approval

Jung estate v Jung estate 2022 BCSC 1298 found a will invalid and discussed the difference between testamentary capacity and knowledge and approval.

There is a distinction between capacity to make a will and knowledge and approval of the contents of a will.

Chief Justice Hinkson quoted from John Poyser’s book Capacity and Undue Influence (Toronto: Carswell, 2014) at page 235 in Halliday (para. 178) in distinguishing between testamentary capacity and knowledge and approval:

Lord Justice Moore-Bick went on to comment on the distinction between testamentary capacity, on the one hand, and knowledge and approval on the other, giving an elegant formulation to distinguish between them (emphasis added):

The use of the expression “knowledge and approval” is liable to give the impression that the court is concerned with whether at the time he executed the will the testator must be able to reconsider all the dispositions he has made. That would require testamentary capacity, but that is not what is meant by the convenient expression “knowledge and approval”. Modern authorities recognise that a clear distinction is to be drawn between testamentary capacity and knowledge and approval. As the judge observed in this case …, testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve the choices that have already been made.

Paraphrasing a different comment elsewhere in the reasons for decision, the twin requirements of knowledge and approval in testamentary capacity ensure that the will is the product of the conscious intention of a sound mind. Knowledge and approval is the “conscious intention” in that formula.

Justice Francis explained that knowledge and approval requires more than the will-maker “simply knowing the contents of the will” but requires that the will-maker is “aware of the magnitude of the residue of her estate and must ‘appreciate the effect’ of the disposition of her estate”: Geluch v. Geluch Estate, 2019 BCSC 2203 at para. 127; citing Russell v. Fraser (1980), 118 D.L.R. (3d) 733 (B.C.C.A.) at para. 12.

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