The importance of estate planning cannot be overstated. Preparing a will and other estate planning documents is the single best way to ensure that your assets are distributed following your wishes after you are gone. Unfortunately, far too many Ontarians wait too long to prepare their estate planning documents. At best, waiting too long might cause unneeded stress as you rush to prepare your will. At worst, you may miss out on the opportunity to get your estate plan in place.

One issue that can threaten an individual’s ability to create an estate plan is testamentary capacity is their mental capacity to understand and appreciate the effects and consequences of making their will. Without testamentary capacity, a will is invalid. This blog will explore what testamentary capacity is, and how to determine whether someone has it at the time their will is executed.

What is Testamentary Capacity?

As alluded to above, testamentary capacity refers to an individual’s mental capacity to create a valid will. “Incapacity” may arise from a variety of health conditions, including dementia, learning disabilities, mental health issues, or medical events such as strokes.

Confirming that an individual has testamentary capacity ensures that wills and other estate planning documents accurately reflect the will-maker’s intentions and that they were not unduly influenced or coerced into making decisions that go against their interests.

If an individual creates a will and another party later claims that the will-maker did not have the capacity to create the will, a court may find that the will was invalid, rendering their estate plan unenforceable. Thus, it is critical to ensure that a will-maker has the necessary capacity to create a will when they are making it.

Assessing Testamentary Capacity

The courts have held that a will-maker must have “a sound disposing mind” to create a valid will. But what does “sound disposing mind” mean? Typically, the courts have found that a will-maker must:

• Understand the nature and effect of the will;
• Know the nature and extent of their property;
• Understand the extent of what they are giving under the will;
• Remember the people whom they might be expected to provide for under the will (for example, children); and
• Where applicable, understand the nature of the claims being made by parties they are excluding from the will (for example, when a direct family member is left out of the will).

Who Determines Testamentary Capacity?

Different parties might be interested in the testamentary capacity of the will-maker, depending on the timing and circumstances. Wills and estate lawyers must ask their clients questions when working on their estate planning documents to confirm whether, from the lawyer’s perspective, they have the necessary capacity to create the documents. Despite taking these steps, however, challenges to the will or other issues can still arise.

After a will has been created, testamentary capacity may become relevant if another individual challenges the will in court on the basis that the will-maker lacked testamentary capacity. In these cases, the capacity of the will-maker will be determined by the court based on the evidence provided by the parties involved in the dispute.

How is Testamentary Capacity Determined in Wills Challenges?

Where a will is challenged for lack of testamentary capacity, it is not enough to simply say that the will-maker had testamentary capacity. Rather, the party who wants to prove that the will is valid will need to prove that the will-maker was capable. This exercise can become especially complicated because, often, the will-maker will invariably have passed away before the will is challenged.

As a result, the courts will often rely on medical evidence, expert opinions, or even testimony from friends, family members, or the lawyer who helped prepare the will regarding the will-maker’s mental capacity at the time they created their will.

Estate Planning and Issues Relating to Testamentary Capacity

In addition to testamentary capacity, will-makers should be aware of the other challenges that come when preparing an estate plan with reduced capacity, which are outlined in detail below:

Testamentary Incapacity Can Leave Will-Makers Vulnerable

Creating an estate plan is a necessary, but sometimes challenging experience. After all, will-makers often need to make difficult decisions regarding how their assets will be distributed, and to whom. When prospective will-makers experience diminished testamentary capacity, they are left vulnerable to influence from potential beneficiaries. In turn, this influence – or even the perception of influence – can lead to disputes between beneficiaries down the line, resulting in a challenge to the will.

Perceived Testamentary Incapacity Can Raise Suspicion Regarding a Will

Suppose, for example, a will-maker was suffering from diminished capacity yet executed a will that was reasonable and adequately provided for the beneficiaries that the will-maker wanted to care for. In these circumstances, another beneficiary could still challenge the validity of the will and, if successful, have the will deemed invalid. Ultimately, it does not matter what the will says. If a will-maker creates an estate plan yet is later found to have lacked testamentary capacity, the will could be found to be invalid. Creating an otherwise reasonable will in circumstances where others may suspect you to be of diminished capacity can create significant challenges for your estate plan.

Testamentary Incapacity Can Prevent Will-Makers from Creating Their Estate Plan

It is also important to consider situations where an individual becomes incapacitated before creating an estate plan and is prevented from executing their estate documents. In these situations, the individual will be unable to create a valid will and their estate will be distributed by the intestate succession rules under the Succession Law Reform Act.

Avoiding Capacity Issues in Estate Planning

The single best way to avoid capacity issues in estate planning is to create your estate plan before capacity issues arise! To that end, if you haven’t already created your estate plan, now is the perfect time to speak with an experienced wills and estates lawyer.

Remember, too, that incapacity planning should be included as part of your estate plan. Like outlining how you want your estate to be distributed in your will, you can also appoint individuals to make decisions (like financial or health care decisions) on your behalf if you become incapable of making those decisions yourself.

Contact the Wills and Estates Lawyers at Baker & Company for Assistance With Estate Planning

At Baker & Company, our estate planning lawyers regularly review and update existing wills, and prepare new wills and trusts for clients with estates of all sizes. Whether you are looking to prepare your first estate plan, revise an existing testamentary document, or have questions about estate administration, our team can help. Call us at 416-777-0100 or contact us online to schedule a consultation.