Testamentary Capacity: The Basics

Testamentary capacity describes the mental ability required to create a valid will. When individuals draft their wills, they must be of sound mind and capable of understanding the implications of their decisions. This is crucial in estate planning. It ensures that wills accurately reflect the testator’s wishes and mitigate risk of estate litigation.

Assessing capacity can be complex. The courts can be willing to find testamentary capacity in some cases where a person isn’t able to, for example, make financial decisions for themselves. Because wills drafted by a person lacking capacity are invalid, will writers and their beneficiaries should recognize the signs of lack of capacity.

What is Testamentary Capacity?

Testamentary capacity is the legal standard for having the mental ability to make or change a will. When someone drafts their will, they must meet specific criteria to ensure its validity. To have testamentary capacity, a will writer must have an understanding of the following.

Nature of a Will

•  The testator (the person making the will) must understand the purpose and effect of creating a will.
• They should comprehend that a will outlines how their assets and property will be distributed after their passing.

Extent of Their Property

• The testator needs to be aware of the nature and extent of their property.
• They must understand the extent of the assets which beneficiaries stand to inherit from the estate.
• This includes knowing what assets they own, such as real estate, bank accounts, investments, and personal belongings.

 Beneficiaries and Relationships

• The testator must recognize the people who stand to inherit from the will.
• Understanding family relationships and friendships relevant to the will is crucial.
• They must understand the nature of disputes which may arise, particularly from those left out of the will.

Coherent Planning

Testamentary capacity requires a will writer to understand these issues, and use that understanding to create a coherent estate plan. When the courts have reason to believe that a person didn’t have testamentary capacity, they can invalidate a will or reverse gift transfers.

The Importance of Testamentary Capacity for Will Writers

The general aim of the Wills, Estates and Succession Act and the BC courts that enforce it is to give effect to genuine, valid wills that reflect the will writer’s testamentary intentions. For this reason, the courts are empowered to cure deficiencies in invalid wills to ensure its writer’s wishes are respected. However, the courts can also invalidate a will that was written by someone lacking testamentary capacity for the same reasons. If you write a will without having the testamentary capacity to do so, it may not reflect your genuine testamentary intentions and may not be upheld.

Ensuring Your Will is Valid and Enforceable

To be valid in British Columbia, a will must be in writing, signed by the testator and by two witnesses. However, wills which meet these formal requirements can still be considered invalid if they were written by testators lacking testamentary capacity. 

To ensure that the administration of your estate aligns with your wishes, it’s important to keep your will updated while you maintain testamentary capacity. Further, a robust estate plan should include plans for who will manage your legal, financial, healthcare and lifestyle decisions in the case that you lose capacity unexpectedly. Remember, you can lose testamentary capacity unexpectedly at any time due to serious injury or illness. 

Mitigating Risk of Estate Litigation

It is not uncommon for estate litigation to arise when a beneficiary or interested party has suspicions that the will writer lacked testamentary capacity when they executed their will. A common example of this type of wills variation challenge happens when a will writer, lacking testamentary capacity, creates changes to their will without professional assistance. This can often take the form of a handwritten codicil or notes left in their estate home prior to their death instructing changes to their existing estate plan.

When beneficiaries or interested parties (including past beneficiaries, spouses or children) have suspicions regarding the will writer’s capacity to make those changes, they can make a wills variation claim. Though the outcome of the claim may be that the most recent will from before the writer lost capacity is enforced, the process is still costly to the estate. Will writers should endeavor to prevent possible litigation arising as it can lower the overall value of their beneficiaries’ inheritances and significantly delay the administration of their estate. 

It’s important to understand that loss of testamentary capacity is not always permanent. Older will writers may experience periods of testamentary incapacity due to health issues or medications they take, but can regain capacity later. Will writers should execute all updates and changes to their will with an estate lawyer, who can ensure that you have testamentary capacity and that your changes will be upheld.

The Importance of Understanding Testamentary Capacity for Beneficiaries

Beneficiaries should also understand the significance of testamentary capacity and recognize signs of incapacity for several reasons:

Protecting Their Interest in the Estate

Beneficiaries have a vested interest in the validity of a will that they stand to inherit from. Beneficiaries who recognize signs of incapacity can raise their concerns before the death of the will writer, potentially preventing future estate litigation. Further, if a will writer who lacks capacity makes inter vivos gifts of estate assets during their lifetime, beneficiaries can provide valuable evidence should a dispute arise concerning the transfers.

Challenging Invalid Wills

Beneficiaries and interested parties need to know when they can raise concerns over a will’s validity. If they have grounds to suspect the will writer lacked capacity when executing their will, they can seek legal help to raise a wills variation claim. Recognising the signs of testamentary incapacity early can help beneficiaries to protect their inheritance.

An Example From Case Law

Testamentary capacity is important to understand because the mere presence of cognitive deterioration or illness when a will was written doesn’t necessarily mean the will is invalid. The BC Supreme Court recently discussed this distinction in Nykoryak v. Anderson (2017).

The case concerned the estate of Ivan Hlynsky. His son and grandaughter, Bill and Mariya, applied for an order from the courts declaring that the most recent version of Ivan’s will was invalid due to lack of capacity. Ivan drafted a will in 2006 leaving the residue of his estate to his son Stephan, and Mariya. Ivan did not include his other children, Bill and Natalie, as beneficiaries of the estate. Before his death in 2015,  Ivan created a new will excluding Mariya. He left the residue to his children Natlie and Stephan.  

Bill and Mariya challenged the will on the grounds of testamentary incapacity because at the time, Ivan was experiencing cognitive decline including some memory loss and confusion. He was also having significant difficulty with his hearing.

The Court’s View

The court reviewed evidence from Ivan’s will drafting lawyer to determine if he had testamentary capacity at the time. Despite his cognitive decline, it was found that he understood:

• The nature of a will;
• The nature of his property disposed of in the will; and
• The people who stood to benefit from the will.

Further, a medical examination from shortly after the will was executed was reviewed by the court. The examination found that Ivan was experiencing ‘fairly advanced dementive illness’. However, the examining doctor noted that, at the time, Ivan had no delusions and a good understanding of his assets, beneficiaries, and the nature of the will. Ultimately, the court found that Ivan had testamentary capacity at the time he drafted the new will. In the judgment, several cases which acknowledge that testamentary capacity can exist despite the presence of cognitive decline. The judge granted the defendant’s request and ordered that the 2015 will was valid.

Reminders for Will Writers

As the Nykoryak case and other BCSC case law demonstrates, testamentary capacity can be found even where the testator is experiencing cognitive decline. However, even where a will written by a testator with cognitive decline is found valid, the estate and beneficiaries can ultimately lose out on time and money from resulting litigation. To minimize risk of litigation, will writers should update their will frequently, and ensure to seek help from a professional who can assess and provide evidence on their capacity if necessary. 

Understanding the limits of testamentary capacity in BC estate law is important for all will writers and beneficiaries. Further, planning in advance for potential future incapacity is an essential part of a robust estate plan. Remember, you can lose capacity unexpectedly at any time, particularly later in life. If you’re curious about the impact of potential capacity issues on your estate, or an estate you stand to benefit from, contact an experienced estate lawyer today.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.