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| Esther Mendelsohn |
Testamentary capacity: Test and issues
Testamentary capacity is the capacity to make a valid will or other testamentary disposition and is simple: does the testator have the capacity to understand (i) the nature of the act of making a will and its effects; (ii) the extent of the property that is being bequeathed; (iii) the possible claims that could be made in respect of the testator’s property.
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There is a presumption of testamentary capacity upon “due execution” of a will that can be rebutted if a party challenging a will can point to suspicious circumstances — and the more serious the allegation, the more closely the evidence ought to be scrutinized. If the presumption is displaced, the propounder of the will must then establish on a balance of probabilities that the testator had testamentary capacity (Vout v. Hay, [1995] 2 S.C.R. 876). A testator may have partial incapacity or lucid intervals (Banks v. Goodfellow (1870), L.R. 5 Q.B. 549), and even a will that was executed while the testator lacked capacity may still be valid (Re Davis [1963] 2 O.R. 666-683). The rule is set out in Parker v. Felgate, (1883), 8 P.D. 171 — the key moment is the time the testator provides instructions.
Indicia of lack of testamentary capacity
Advanced age is not always partnered with cognitive decline, and cognitive decline does not necessarily vitiate testamentary capacity. Jumping to conclusions regarding the testamentary capacity of elderly individuals or those who have been diagnosed with dementia is both an impermissible stereotype and incorrect at law (Johnson v. Johnson Estate, 2009 CEAG para. 31,645). In Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807, the court warned that absent evidence regarding a lack of capacity, the right to dispose of one’s worldly goods is an important right, which “is not to be interfered with lightly.”
A solicitor’s detailed notes are key (Jung v. Jung Estate, 2022 BCSC 1298) and the court will not hesitate to rebuke drafting solicitors who fail to take and maintain the details of the file (Scott v. Cousins, [2001] O.J. No. 19).
Best practices for drafting solicitors
There are two critical things that every drafting solicitor should do when she or he is approached by a client wanting to draft a will: assess the (potential) client’s testamentary capacity and document their assessment, giving a rationale for their conclusions.
1. Assessment
Even if you feel confident that a (potential) client has the capacity to instruct you, you cannot rest on that confidence to conclude that they also have testamentary capacity; the test set out in the jurisprudence is a reliable guide for conducting an assessment. A drafting solicitor can prepare questions, based on the test, to pose to a potential client wanting to execute a will or codicil; it is a good idea to repeat the same questions in subsequent meetings to check for consistency and avoid leading questions (Worrell, Re, [1970] 1 O.R. 184-193). The court may ultimately disagree with your assessment, but conducting — and documenting — that assessment is a must if you want to avoid exposing yourself to legal action from disappointed beneficiaries (Hall v. Bennett Estate, [2003] O.J. No. 1827) or drawing the ire of the court.
2. Documentation
Indeed, assessing testamentary capacity without documenting the assessment is as useful as a testator having testamentary wishes without committing them to paper. It is essential to document every step of the process — from the people present, to the questions asked and answers given, to the demeanour of the (potential) client and his or her reasons for making particular bequests or appointments. Whether or not you accept the retainer, assessing capacity is like math — you need to show your work.
Determining whether a potential client has testamentary capacity is a fundamental part of every drafting solicitor’s practice, and understanding testamentary capacity is critical for estate litigators, whether representing the propounder of a will or the challenger. To learn more, join us for Wagner Sidlofsky’s Lunch and Learn seminar on this topic, featuring Wagner Sidlofsky LLP counsel, Prof. C. David Freedman and Raquel Levine, on May 27, 2025, starting at 12 p.m. This seminar is an opportunity for new and experienced estate lawyers — whether solicitors, litigators, or both — to refresh and deepen their knowledge of this important legal issue. For more information and to register, please access this link.
Esther Mendelsohn is a lawyer at Wagner Sidlofsky LLP, practising in the estate and commercial litigation groups.
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