Although there is no clear answer to what extent cannabis can affect our minds and bodies, studies and evidence from these studies indicate that cannabis has an impact on learning, memory, and attention for 24 hours after use. Hence, there is no question that marijuana can have mind-altering effects that may impair someone’s judgment and coordination (Health Canada).
What does that mean in the world of wills and estates? Can someone who is under the influence of cannabis create a valid will?
One of the most important requirements for a will to be valid in Ontario is testamentary capacity. Testamentary capacity means that a person must have the cognitive abilities to be capable of making a valid will. For example, the testator must know what it means to make a will and understand its effects. In particular, it is crucial that the testator had testamentary capacity at the moment the will was executed.
The question that arises is whether a willmaker who is under the influence of cannabis, has the ability to fully understand the impact of their decisions regarding the disposal of their assets and if he or she is able to fully understand the factual as well as sometimes complex legal implications that must be considered in the estate planning process.
Another important step of creating a valid will is ensuring that all of the willmaker’s assets were considered in the process. But what if the willmaker’s memory is impaired by cannabis use leading to difficulties remembering what assets they own that must be brought into account when planning for a Will and other testamentary documents? Is a will more likely to be challenged in court if the testator used marijuna?
It is evident that the use of cannabis can have a significant impact on estate planning. Creating a valid will therefore requires that these matters are evaluated carefully with the assistance of an estate lawyer and of course the willingness of the willmaker to disclose information about their marijuna use to the lawyer.