Testamentary capacity

Testamentary capacity is an especially important topic when the validity of a will is called into question. There is no exact science to determine when a person is able of making legally binding decisions, especially as it relates to their estate.

How is the testamentary capacity defined? 

There is a general principle being used to define if the person is capable. The testator must have “a sound disposing mind” to be capable to make a valid will. The principal of “soundness of mind”, which is necessary to build testamentary capability, not as strict as that required to conduct other business affairs and mostly reflects the testator understanding of the nature and effect of the will. Also, it is reflecting if the testator is consistent, adequate and understands what will happen to his/her property and estate, whether he/she remembers and understands those who benefit from the estate or those whom they disinherit. He/she also must understand, including but not limited to the consequences of their decisions.

Only those who fulfil the legal requirements for Testamentary Capacity may make or change a will. This test is intended to ensure that people’s interests are honoured and advanced to the greatest extent possible, but simultaneously balancing the desire to protect vulnerable people. To establish testamentary capacity in Ontario it is not enough to repeat a perfected routine. The testator must be “free and capable”.

If the person is still mentally capable of understanding all the information and can understand consequences after his acts, then probably he will be considered as capable testator. However, if the testator cannot do the above, he would be considered mentally incapable of making a will and would most likely need an attorney of personal care to help them distribute their assets.

What are the solutions?

Sometimes it is recommended that the testator will obtain a specialist advice and arrange for a medical practitioner to approve your will by completing a testamentary capacity report before the execution of the will. The purpose of this process is to confirm the understanding of the will and reduce the possibility of the will being challenged in the future. When you make your will with a lawyer, the lawyer will conduct initial assessment and advise accordingly.

To conclude, if the person is incapable of understanding the nature or consequences of the person’s conduct, including the potential for harm to that person, they would not be able to write their own will. Their estate would most likely be distributed in different way. Please do not hesitate to contact our office and get a professional advice.