Estate disputes can be highly emotional and caused by a range of reasons. For example, beneficiaries may have concerns about an executor’s conduct. In other cases, a family member might feel they have been unfairly disinherited by a testator and seek to challenge the Will

When it comes to challenging a Will, the family member may argue that the Will is legally invalid because the document does not comply with the formal requirements for a Will. They may also allege that the testator lacked the mental capacity to create the Will when it was made or the testator was forced to make the Will under duress or through undue influence.

The issue of testamentary capacity was the focus of a recent decision of the Supreme Court of British Columbia, where family members raised concerns about suspicious circumstances during the signing of a testator’s Will.

The legal test for testamentary capacity

In order to make a valid Will, the testator (Will-maker) needs to have sufficient mental capacity and know what they are doing.

What does the testator need to be able to do?

The testator must be sufficiently clear in their understanding and memory to know, on their own, and in a general way:

  • the nature and extent of their property;
  • the nature of the act of making a Will and its effects;
  • the persons who are the natural objects of the property; and
  • be capable of forming an orderly desire as to the disposition of the property.

Capacity is assessed as of the time when the testator gave instructions and executed the Will.

Who bears the burden of proof?

Generally speaking, there is a presumption that a testator had the necessary testamentary capacity so long as:

  • the Will was prepared in accordance with the applicable statutory formalities;
  • the Will was read by or to the testator; and
  • the testator appeared to understand the Will.

However, this presumption can be rebutted if a person raises suspicious circumstances in relation to the preparation of the Will. “Suspicious circumstances” may relate to the testator’s mental capacity or a concern that there was coercion or fraud that overrode the testator’s free will. Where suspicious circumstances are raised, the person asserting the Will is valid bears the burden of proving that the testator had the capacity to make the Will.

97-year-old with dementia executes a new Will

In Nassim v. Healey, an unmarried man with no children owned and managed investment properties with his brother’s two children. He was in a four-decade-long romantic relationship with a woman. In 2007, he made a Will naming his nephew and niece as the executors and trustees of his estate. It provided that his partner was to inherit a condominium and $350,000, with the residue to be divided equally between his nephew and niece.

The nephew and niece were alarmed in 2017 when the testator asked them to transfer $1 million to his partner and $2 million to her son. This was about half of his total wealth. They obtained two medical opinions, both of which found the man had dementia and was incapable of managing his finances or making personal care decisions. He became frustrated with his nephew and niece’s attempts to control his finances and restrict visits with his partner. 

In 2018, the man instructed his lawyers to prepare a new Will, naming his partner as the executor and sole beneficiary of his estate. He died later in the year. His partner sought to probate this Will, which was disputed by the nephew and niece.

Court finds suspicious circumstances in relation to the execution of the Will

Justice Brongers found that suspicious circumstances were present in relation to the giving of instructions and execution of the Will. His Honour said that the fact that the Will was made by a person who was recently diagnosed by doctors as having dementia and being incapable of managing personal finances was a suspicious circumstance. As a result, the testator’s partner had to prove that he had testamentary capacity.

Dementia diagnosis is not an automatic basis for finding testamentary incapacity

Justice Brongers thought that the best evidence of the testator’s capacity was that provided by his lawyers. They were knowledgeable estate lawyers that felt the testator understood the nature and effect of making a Will, the extent of his property, the claims to which he ought to give effect, and that he was operating free of any delusions.

The Court explained that testamentary capacity was a legal construct, not a medical concept or diagnosis. As such, the evidence of the doctors was less important as it was focused on his ability to manage his finances and personal care on his own. A diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity. Justice Brongers did not think the testator was delusional:

[The testator’s] unhappiness and anger directed at [his nephew and niece] after they took steps to limit [his] control over his finances, property, and freedom of movement were not delusional. In my view, [the testator’s] impression that [his nephew and niece] were “embezzling” or “stealing” his money was one that a rational person in his circumstances could have formed based on the information he had before him. 

Therefore, the Court found that the testator had testamentary capacity and that the Will was valid.

Contact Meridian Law Group in Vancouver for Representation in Will Disputes

At Meridian Law Group, we understand that disagreements about an estate’s distribution arise and can be highly emotional. We help clients navigate Will disputes by providing them with robust advice and creative legal solutions.

The talented and determined estate litigators at Meridian Law Group in Vancouver provide skilled representation and pragmatic advice for clients involved in estate disputes. They help clients resolve estate disputes swiftly and with as little conflict as possible to preserve estate assets. Located in downtown Vancouver, the firm proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your estate matter, please call 604-687-2277 or reach out online.