Capacity to Draft a Will: a critical factor

Everyone should make a will.  However, an individual must have what is known in law as ‘testamentary capacity’ in order to draft a valid will – that is, a will that is legally binding.  In essence, this means the individual must have the mental capacity to know what they are doing at the time the will is made.

Why is this important?

It is increasingly common for legal claims to be made against a deceased estate on the grounds that the deceased person did not have testamentary capacity to draft a will.  Litigation involving an estate is costly, time consuming – and exacerbates what is already a difficult, emotional time for bereaved relatives.

If someone makes a will at a time when they did not, for the purposes of the law, have the required mental capacity – the courts can declare the will invalid.  This means it will have no legal effect and the deceased’s estate may be distributed in accordance with the statutory rules of intestacy.

Just because a person is old or ill does not mean that person lacks capacity – they may be fully of sound mind.  Conversely, a young person can lack the required capacity to make a will, for instance, if they are under the influence of drugs, or they are seriously ill.  The issue is fact specific, which means every case is considered on its own merits.

There is a presumption that someone has testamentary capacity to make a will.  However, when a client wishes to make a will, the lawyer should be alert to matters that may suggest that the client does not or may not have testamentary capacity.   For instance, if the lawyer suspects someone is being pressured into making (or changing) a will against their wishes, or a potential beneficiary is attempting to take advantage of an elderly relative who is succumbing to dementia, lawyers must investigate further. This may involve asking appropriate questions sensitively, and obtaining medical evidence where necessary.

Legal requirements

The law on testamentary capacity is found in both legislation and case law (court rulings on specific issues). Essentially, the law states:

  • The person make a will (the testator) must understand both the nature and the effect of a will, including understanding what would happen to their estate if they did not make a will.
  • The testator must remember what money and property they own and understand they are passing these on under the terms of the will.
  • The testator must appreciate who is to benefit under the will, and whether there are any dependents currently being financially maintained by them who would reasonably expect to be a beneficiary.
  • The testator must understand the nature of the terms of the will.
  • The testator must understand why they are disinheriting someone (if that is the case) and appreciated that a potential claim could be made after they have died.

On this latter point, an individual can disinherit someone if they so wish, for instance, cutting an errant son or daughter out of the will.  However, in limited circumstances that individual may be able to make a successful claim against the estate, for instance, if they were receiving financial support at the time of the testator’s death. The situation is different with respect to attempting to disinherit a spouse, and anyone who wishes to do so should first seek legal advice, or else their estate may face costly litigation and/or an equalization claim under the Family Law Act after their death.

How can we help?

The expert wills and probate lawyers at Rogerson Law Group have years of experience advising individuals drafting their wills.  In circumstances where we have concerns in relation to a client’s testamentary capacity, we deal sensitively and sympathetically with the issues raised.  We work hard to protect our clients and to help them achieve their goal of making a legally valid will as far as we are able.

Contact us now for urgent advice.

Rogerson Law Group provides wills & estate planning services in the entire Greater Toronto area including Toronto, Mississauga, Vaughan, Brampton, Richmond Hill, Etobicoke, Scarborough and Barrie and surrounding areas with offices located in downtown Toronto, Barrie, and associated offices in Ottawa. Contact a wills lawyer today for a consultation.