Making a will is something that most people inevitably think about, but a 2015 survey conducted by the Canadian Imperial Bank of Commerce indicates that the majority of adult Canadians do not have one. A significant portion of those that have made a will have not reviewed or updated it for more than five years. Amendments or entirely new wills should be contemplated in circumstances such as the birth of a child, change in marital status, or a change in personal assets. After making a will, it is advisable to periodically review. This is an important consideration for those with loved ones of advanced age who may be in the initial stages of dementia, and who either have no will or wish to amend or revoke a previously executed will.
A will is not enforceable merely by the testator’s and witnesses’ signatures being present. In addition to meeting the formal requirements set out in the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 (“WESA”), a will-maker must have the requisite testamentary capacity to make a will. The legal test can be traced back to the enduring nineteenth century case Banks v. Goodfellow (1870), L.R. 5 Q.B. 549, in which the Court held with respect to the testator’s capacity:
“…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 the, the persons who are the object 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.”
A person who is the object of the testator’s bounty includes not just the beneficiaries explicitly named in a will, but also individuals who may have a moral claim on the testator. This includes spouses, children, and also those whom the testator stood in loco parentis.
A century later, the Ontario Court of Appeal provided the ‘modern’ restatement in Re Schwartz (1970), 10 D.L.R. (3d) 15:
“The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way (1) the nature and extent of his property, (2) the persons who are the natural objects of his bounty and (3) the testamentary provisions he is making; and he must, moreover, be capable of (4) appreciating these factors in relation to each other, and (5) forming an orderly desire as to the disposition of his property”
The timing is important. A testator will generally need the requisite testamentary capacity when giving instructions for the will, and then afterwards when the will is executed. Individuals suffering from dementia may fluctuate between lucid periods where they possess testamentary capacity, and other periods where they do not. Past cases indicate that in some circumstances the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that they were executing a will drawn in accordance with their previous instructions.
Where a will has been duly executed, and the testator appears to know and approve of the contents of that will, the law presumes that the testator possessed the requisite testamentary capacity. However, where facts are proven which create the suspicion of non-capacity on the part of the testator (eg: diagnosis of Alzheimer’s disease prior to the execution of the will), that presumption is rebutted. The onus then shifts to the proponents of the will, who must prove, on the balance of probabilities, that the testator did possess testamentary capacity. The test is a legal question, not a medical one, though medical evidence will usually play an important role in determining whether a testator did or did not have capacity to give instructions and execute a will.
This has been articulated as requiring proof that the testator was not ailing under a disorder of the mind which poisoned their affections, perverted their sense of right, or prevented the exercise of their natural faculties. Essentially, the proponents of the will must show that the testator was not acting under a disorder of the mind which caused them to execute a will that would not have been made were they of sound mind at the time.
Testamentary capacity is an important consideration which should be kept in mind, and not overlooked, especially for those with elderly loved ones considering changes to their wills. Planning ahead of time may very well avoid a major headache down the road.