Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
Testamentary capacity is used to describe the mental state of an individual when executing their Last Will and Testament. As there is no clear definition of capacity, it is often described as a decision-specific, time-specific and situation-specific issue, meaning that capacity can vary from case to case.
When determining whether a person is or was capable of making a decision, there are capacity characteristics that are often used for guidance purposes. Specifically, when assessing testamentary capacity to grant or revoke a will, it is required that the testator has the ability to understand the nature of the act of making a will, the effects it has and understand and appreciate the extent of the property of which he or she is disposing of.1
In order to make a valid will, the testator must also be of sound mind, memory and understanding, which includes a sufficiently clear understanding and memory of their property, as well as the beneficiaries who will inherit such property. In addition, the key moment for determining whether a will is valid is to look at the time when the testator executed their will and provided instructions. Both of these situations will be assessed to determine the validity under capacity grounds.
A foundation point in these cases is that the testamentary document should genuinely reflect the decision of the testator when executing the will. In the event a will is challenged after the testator passes away, the courts will seek to identify whether the testator knew and approved of what was set out in the will and whether they had capacity to do so.
Often times when there is an unhappy beneficiary, it is common to challenge the validity of the deceased’s will under capacity grounds. In this case, the beneficiary must prove that at the time the testator instructed or executed their will, they did not have a sound disposing mind to understand and appreciate the effects of the will.
A court may set aside a will if they find that a testator did not have knowledge or approval of the contents in the will. A testator’s lack of knowledge or approval may include illiteracy, physical difficulties, an unexplained radical departure from previous wills, or an absence of independent legal advice. A will may also be set aside for failure to comply with the formalities of execution, found in section 4 of the Succession Law Reform Act.2
Before drafting a will, it is imperative to seek professional legal advice and obtain a lawyer to help execute the will. This will prevent a beneficiary from commencing any challenges regarding the validity of the will after you pass, ensuring that your estate is distributed according to your wishes.
When determining whether a person is or was capable of making a decision, there are capacity characteristics that are often used for guidance purposes. Specifically, when assessing testamentary capacity to grant or revoke a will, it is required that the testator has the ability to understand the nature of the act of making a will, the effects it has and understand and appreciate the extent of the property of which he or she is disposing of.1
In order to make a valid will, the testator must also be of sound mind, memory and understanding, which includes a sufficiently clear understanding and memory of their property, as well as the beneficiaries who will inherit such property. In addition, the key moment for determining whether a will is valid is to look at the time when the testator executed their will and provided instructions. Both of these situations will be assessed to determine the validity under capacity grounds.
A foundation point in these cases is that the testamentary document should genuinely reflect the decision of the testator when executing the will. In the event a will is challenged after the testator passes away, the courts will seek to identify whether the testator knew and approved of what was set out in the will and whether they had capacity to do so.
Often times when there is an unhappy beneficiary, it is common to challenge the validity of the deceased’s will under capacity grounds. In this case, the beneficiary must prove that at the time the testator instructed or executed their will, they did not have a sound disposing mind to understand and appreciate the effects of the will.
A court may set aside a will if they find that a testator did not have knowledge or approval of the contents in the will. A testator’s lack of knowledge or approval may include illiteracy, physical difficulties, an unexplained radical departure from previous wills, or an absence of independent legal advice. A will may also be set aside for failure to comply with the formalities of execution, found in section 4 of the Succession Law Reform Act.2
Before drafting a will, it is imperative to seek professional legal advice and obtain a lawyer to help execute the will. This will prevent a beneficiary from commencing any challenges regarding the validity of the will after you pass, ensuring that your estate is distributed according to your wishes.
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References
1 Banks v Goodfellow (1870)2 Succession Law Reform Act, s.4