Lack of testamentary capacity is one of the top reasons that wills are challenged and invalidated in Alberta.
If someone claims that the will-maker lacked the decision-making ability to execute the duty, the will can be deemed invalid by the courts.
To decide such cases, the courts need a way to assess testamentary capacity — so, how do they achieve that?
Let’s consider how testamentary capacity is defined and assessed during challenges in estate litigation.
Testamentary capacity in Canada
The standard for assessing testamentary capacity in Canada has not changed for over 150 years. The Banks v. Goodfellow case went before the English High Court in 1870 and the guidelines that resulted are still used in Canadian law today.
In this case, because of unfortunate circumstances, deeming the will valid would result in the entire Banks estate going to someone to whom Banks was not close rather than to close relatives.
The case hinged on the testamentary capacity of Banks to change his will when he did (a couple of years before he died).
He had a history of mental instability, including paranoid delusions, and spent many years living in a “lunatic asylum”, as it was then known.
The Court ruled that the testator’s past diagnoses could not determine his capacity to execute his will. Instead, it depended on Banks’ capacity to execute a will in the specific moments when he provided instructions regarding its content and when signing it. As such, the will was declared valid.
How is testamentary capacity defined?
This case caused the courts to establish a set of guidelines to assess the capacity of a testator, and these were adopted by the Canadian legal system too.
Where testamentary capacity is called into question, the following must all be true for the will to be declared valid:
- The testator must have been able to understand the nature of making a will and the legal impact of the document.
- The testator must have been able to understand the extent of the property which they were disposing of.
- The testator must have been able to comprehend and appreciate the potential legal claims the estate could face.
- The testator was not under the influence of medical diagnoses which could limit his ability to understand and appreciate the above at the relevant times.
How to protect your will from being challenged in Alberta?
To ensure that the will you write is considered legally valid in Alberta and can withstand challenges, you must meet certain criteria during the will-writing process.
For instance, in most cases, the testator must be at least 18 years of age. A formal will must be signed in the presence of two witnesses who are not beneficiaries. Witnesses are not necessary for a holographic or handwritten will, but the document must be in the testator’s writing and signed by the testator.
Provisions must also be made in the will for dependent spouses or children, or it may be declared invalid.
Another requirement for formal and holographic wills is that the testator must have the mental capacity to execute a will, as defined above.
If there are any doubts about mental capacity, it would be best to conduct a check by a qualified medical professional immediately before the will is executed, as this can help rebut a challenge to the will.
Failure to follow the guidelines can result in challenges from relatives excluded from the will or those removed as beneficiaries due to changes made to an earlier will.
How courts assess testamentary capacity in Alberta
The Banks v. Goodfellow case provides the guidelines for assessing mental capacity in Alberta. The courts begin with the presumption that the testator had sufficient capacity to understand and execute the will as written.
The onus is on the person challenging the will to prove that the testator lacked the mental capacity to write a valid will — for instance, medical evidence, reports from mental health specialists, and witness testimony.
So, if a testator is diagnosed with dementia, it doesn’t on its own rebut the presumption of mental capacity. The key consideration is the capacity of the testator at the relevant times relating to the drafting and signing of the will.
With challenges to wills based on the lack of testamentary capacity, undue influence is also often claimed by relatives or other loved ones too.
So, the Alberta courts must frequently rule out the possibility of suspicious circumstances or undue influence over a testator before making a final decision.
Suspicious circumstances, fraud and undue influence
Someone challenging the will may take the personal representative (“proponent of the will”) to court to raise the prospect of “suspicious circumstances” to negate testamentary capacity.
In these cases, the burden of proof may shift from the challenger to the personal representative, who must prove testamentary capacity on a balance of probabilities that the required formalities were satisfied.
Fraud and undue influence are two reasons for a will to be invalidated in Alberta. The burden of proof is on the plaintiff to show that fraud took place or undue influence was exerted – which can be challenging.
The court strives to ensure that the wishes of the testator are honoured — so if the defendant can show that the formalities were complied with and knowledge, approval and testamentary capacity were established, this will usually be enough for the court to validate the will.
The Alberta will-challenge process
In summary, the will-challenge process in Alberta is outlined as follows:
- The appointed personal representative must usually apply for probate.
- After proving that the will was properly executed and witnessed, it is considered presumptively valid; execution, knowledge and approval, and the testamentary capacity of the testator are presumed.
- The personal representative must then carry out the testator’s intentions as expressed in the will.
- Suspicious circumstances may be raised by:
- the circumstances surrounding the preparation of the will
- circumstances calling into question the capacity of the testator
- circumstances showing acts of coercion or fraud
- If the presumption of testamentary capacity is triggered, this puts an evidentiary onus on the challenger to raise the suspicious circumstances to rebut the presumption.
- If the challenger succeeds by establishing a genuine testamentary capacity issue, the onus shifts to the personal representatives to prove capacity.
If you need assistance with challenging or defending a will, speak to an experienced estate planning lawyer at Vest Estate Lawyers in Alberta for an initial consultation about your needs.
We currently have three offices across Alberta — Edmonton, Calgary, and Red Deer. However, we serve the entire province of Alberta. We also have the infrastructure to work with any of our clients virtually — even the furthest regions of Alberta.
We also have a dedicated intake form to help you get the ball rolling. Our intake team will review your specific case and advise you on the next steps to take and what to expect moving forward.
Our offices are generally open 8:30 a.m.—4:30 p.m., Mon—Fri.
WILLS and ESTATES LAWYER
Heather Tyminski is a lawyer in the firm’s Calgary office with many years of experience practicing estate law.