Testamentary capacity may be the most loaded word in Canadian law - loaded with financial ramifications, that is.

Picture yourself at home one lazy Sunday morning when the call comes in from your sister. "Dad's dead," she announces through tears. You knew it was imminent as you had seen your father a few months ago; you had said goodbye and he had trouble recognizing you.

"That's not all," the voice says on the other end of the line. "He signed a new will the day before he died and left everything to the hospital."

This kind of stuff happens very, very often.

Seniors with dementia often get it stuck in their minds that they want to impact upon their new reality with a new will.

To estate lawyers, the issue is known as testamentary capacity; did the testator (the person who died) have a sound mind at the time of signing the new will? If not, it's not worth the paper it's written on; it is void and unless there's a prior valid will to rely on, the estate gets divided pursuant to the intestate statute of your jurisdiction.

Wills done by kids (i.e. under the age of majority) is a whole other kettle of fish and will not be treated in this article.

Presumption of Capacity

Valid WillAdults - those of the age of majority - are presumed to be of sound mind and that's the starting point of any testamentary capacity discussion.

Williams on Wills:

"It is presumed that the testator was sane at the time when he made his will but if the question of his sanity is contested, the onus is on the person propounding the will to prove that the testator was of sound disposing mind at the time he made his will."

In Ouderkirk, Canada's Supreme Court adopted these words:

"The English law leaves everything to the unfettered discretion of the testator. It is essential to the exercise of such power that a testator shall understand the nature of the act and its effects; shall understand the nature of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his mental faculties; that no insane delusions shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. "

Age in and of itself is no proof of an unsound mind.

Indeed, one New York judge suggested that a change to a will in old age may be self-serving (Van Alst):

"It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law still gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attention due to his infirmities."

This contrasts with the statement of Justice Cockburn in Banks v Goodfellow, as summarized by the law report headnote:

"... when the fact that a testator has been subject to some form of mental illness is established, a will executed by him must be regarded with great distrust, and every presumption should in the first instance be made against it. The presumption against such a will becomes additionally strong where the will is an inofficious one, i.e., one in which natural affection and the ties of near relationship have been disregarded."

Canadian author James MacKenzie wrote:

"... a person must be of sound mind, memory and understanding to be able to make a valid will.

"When a will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the nature and quality of the act. The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded."

In an American case, Harrison v Rowan:

"... he must, in the language of the law, have a sound and disposing mind and memory. In other words he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them.

"It is not necessary that he should view his will with the eye of a lawyer and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms."

The mere fact of an unusual will does not make it void.old man

In Re Millar, the testator referred, in a will that went unchallenged as to capacity, to his "folly in gathering and retaining more than I require in my lifetime" and then left shares in a brewery to each and every Protestant Minister in Toronto at the time of his death!

The assessment of testamentary capacity is not of the exclusive purview of the medical profession.

In Marquis, Justice Hoyt of the New Brunswick Court of Appeal adopted these words in reference to testamentary capacity:

"It is a practical question which may be answered by a layman of good sense with as much authority as by a doctor.

"... the testimony of the (medical) experts should not outweigh the testimony of eye-witnesses who had opportunities for observation and knowledge of the testatrix and the instrument propounded was the last will of a free and capable testator."

To the mix must be added the occasional shocker legal decision such as that of Justice Ruttan in Royal Trust v Rampone. In that case, the testator had been declared incompetent of managing his affairs and then, a few weeks later, signed a codicil in words that echo nonsense, but ... :

"Mr. Rampone was competent to make a will and ... at the same time he was incompetent to manage his own affairs."

Ruttan is not alone.

In Re Ferguson, the fact of a testatrix suffering from senile dementia was not enough to vitiate the will although admittedly, senile dementia is a progressive disease. Similarly, in Re Doiron, memory failure did not suffice to set aside the will.

The reality is that once challenged, the burden of proof shifts to the person who must prove the will (usually the executor) but at the end of the day, the question of the capacity of the testator falls on the court to answer. Only the court can weigh competing interests and balance self-serving evidence of executor, beneficiary or other parties.

Another important aspect is where the will appears to have been drawn up in suspicious circumstances. Indeed, the common law has developed a doctrine of suspicious circumstances as described by Justice LaForm in Sorkos:

"Once it is proven that a will was duly executed, the knowledge and approval of the contents of the will and testamentary capacity will be presumed.

"However, where there is evidence of suspicious circumstances, this presumption is vacated and the propounder must then prove that the testator knew and approved the contents of the will. If the suspicious circumstances relate to mental capacity, the propounder must also prove testamentary capacity.

"The standard of proof is not altered by the presence of suspicious circumstances; rather, it remains the civil standard of balance of probabilities."