Capacity to Make a Will

The Basic Criteria

The basic legal criteria that British Columbia courts use to determine if someone who makes a will (the “testator”) has the mental capacity to make a will were set out about one hundred and thirty years ago in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549. To paraphrase the criteria set out in Banks, in more modern--if less eloquent--language, the testator:

1. must understand the nature and effect of making a will;
2. must understand the extent of his or her assets;
3. must know close family and friends so that the testator can consider their claims to his or her bounty ; and
4. must not be under any insane delusions that affect what the testator decides to do in his or her will.

Some General Observations

I will write about some of the cases on testamentary capacity in future posts, but for now, I have a few general observations about the tests for mental capacity that I will make here.

There are many people who suffer mental disabilities or whose capacity is diminished who can make a valid will. For example, people in the early stages of Alzheimer’s disease will have memory problems, but may still know their family, and their assets sufficiently well to make a will. On the other hand, if the Alzheimer’s has caused the sufferer’s memory to deteriorate to the point where he does not recognize one of his own children, he will not be able to make a valid will.

Not all insane delusions will affect the testator’s legal capacity to make a will. For example, someone who believes that the government of Prince Edward Island is persecuting her may still have the capacity to make a will. On the other hand, if she believes that her daughter is trying to kill her—assuming that she is suffering from a delusion and the daughter is not in fact trying to kill her—she will not meet the criteria for capacity.

How is capacity established?

In most cases, the lawyer taking will instructions will gather the evidence required to establish capacity simply by asking the testator questions about his or her family, assets and liabilities, discussing the testator’s estate planning options, and making notes. In the vast majority of cases there is no question that the testator has capacity, and the will is unlikely to be challenged.

In other cases, a lawyer may have to take further steps before he or she may be satisfied that the testator has capacity. The lawyer may need to get his or her client’s permission to speak to the client’s physician, or arrange for the client to see a physician or psychologist for a capacity evaluation.

In some cases, the lawyer will conclude that his or her client does not have capacity to make a will, in which case the lawyer should decline to draft the will.

The Sermon

A lawyer has a responsibility to ask sufficient questions to establish that his or her client has the capacity to make a will. This means taking the necessary time to ask those questions. The lawyer who drafts the will may be called upon to testify about the testator’s capacity in court if the will is challenged. (For a case where a lawyer failed to make adequate inquiries to determine the testator’s capacity, see Peters (Estate of) v. Ewert, 2002 BCSC 1540.)

A lawyer who cuts corners to produce a cheap will by failing to thoroughly canvass his or her client’s circumstances, and explain the client’s options, is doing the client a disservice. Similarly, someone who goes to a lawyer for a will, but is not willing to pay a lawyer a reasonable fee for a proper professional job is doing his or her heirs a disservice.