My office is frequently graced with the delightful presence of seniors wanting to ‘re-do’ their Wills. Their reasons for this are numerous, and their history is certainly colorful. They may have very old Wills in place that desperately need re-visiting (sometimes 30 or 40 years old) OR worst case scenario they may never have gotten around to doing a Will at all (please don’t let that be you!). As a solicitor, I have to satisfy myself that the requisite testamentary capacity is present in order for them to understand and execute a valid Will. This requisite mental element can be basically categorized into two components:
(1) The testator must understand “the nature of the act in which he or she is engaged”, that is, actually making a Will. By this it is meant that “he or she should intend by his or her act to make a disposition of property, effective on death”; and
(2) The testator must be free of mental disorder.
The above two points seem simple enough, but if capacity is ‘borderline’ or if there are ‘red flags’ or ‘suspicious circumstances’ it is crucial that any solicitor acting in these circumstances confirms testamentary capacity in order to prepare a valid Will for his or her client. This is not as easy as simply getting a note from the testator’s attending physician stating that the patient is capable to instruct for and execute a new Will. Case law shows that medical evidence, while persuasive, is not conclusive. A solicitor is still under an obligation to conduct a legal capacity assessment as well, which has been suggested by case law to be as follows:
The testator ought to be capable of making his/her Will with an understanding of:
(1) the nature of the business in which he/she is engaged;
(2) a recollection of the property he/she means to dispose of (not necessarily every detail and every figure in his/her investment portfolio, but a general understanding of the value of his/her estate is key);
(3) the persons who are the object of his/her bounty (are his/her beneficiaries logical? is he/she cutting out family and suddenly leaving everything to a new and much younger partner?); and
(4) the manner in which it is to be distributed between them.
It is not necessary that the client be capable of understanding his/her Will at the same level as a lawyer, interpreting all the provisions and legal jargon. The client must simply understand the more basic elements of which his/her Will is composed and the disposition of his/her property in its simple form.
I often see lack of testamentary capacity being alleged by disgruntled beneficiaries in situations where the testator suffered from dementia, including an increasing number of diagnoses of Alzheimer’s disease (all ages), those in the advanced stages of AIDS, those suffering post-stroke and those with other terminal illnesses, such as cancer. Some of these clients do indeed have the requisite testamentary capacity to understand and execute new Wills, however, in these cases the solicitor must be even more vigilant to conduct the appropriate legal assessment of their client and consult with the attending physician(s) to help determine testamentary capacity.
This is provided as information ONLY; it should NOT be construed as legal advice. You should consult with a lawyer to provide you with specific advice for your own situation. For more information on estate planning/incapacity planning and to discuss your specific circumstances, please contact Vanessa DeDominicis on 250-869-1140 or [email protected] . Vanessa practices in the areas of Real Estate, Wills and Estates, and Intellectual Property at Pushor Mitchell LLP in Kelowna and would be more than happy to assist you.
