Generally speaking, when a person dies, those left behind consult the deceased’s Last Will and Testament to ascertain their wishes concerning how they wanted their estate to be distributed upon their death and who they appointed as executor/executrix to carry out those wishes. 

Wills are typically administered in accordance with their terms unless someone challenges either the contents of the will or the capacity of the deceased person to have made the will in the first place. If someone questions the capacity of the deceased person to make a will at all, then that means they are questioning the deceased’s testamentary capacity.

The question remains: how can the testamentary capacity of a deceased person be proven when they are no longer here to be questioned and examined to establish their level of intellectual capacity? Fortunately, there is a procedure in British Columbia through which people may seek to ascertain the testamentary capacity of any deceased person per a predetermined protocol.

Questions About Testamentary Capacity Arise After Death

The case of R.R. Estate involved the siblings and girlfriend of R.R., who had passed away in 2020. In the wake of his death, R.R.’s siblings sought to prove in solemn form a will that R.R. had made in 1979. As part of that application, the siblings sought to have a subsequent made by R.R. in 2019 declared invalid, either because R.R. lacked testamentary capacity to have made the 2019 will or because R.R.’s girlfriend had exerted undue influence over R.R. in the making of the 2019 will. R.R.’s girlfriend maintained that R.R. had been capable of entering a marriage-like relationship with her and of making the 2019 will (which was entirely in the girlfriend’s favour). To that end, the girlfriend sought to prove the 2019 will in solemn form.

Legal Principles Applicable to Proving Wills in Solemn Form and Testamentary Capacity

The court noted at the outset that, to prove a will in solemn form, the person who puts the will forward must demonstrate, on the balance of probabilities (i.e., to a certainty of 51 per cent, meaning “more likely than not”) the following:

1. That the will was executed in accordance with governing legislation
2. That the deceased knew and approved of the contents of the will in question and
3. That the deceased had testamentary capacity at the time the will was formed

In British Columbia, point one must be accomplished in accordance with section 37(1) of the Wills, Estates and Succession Act, as that comprises the “governing legislation.” 

To have testamentary capacity, a deceased person must,

“have known the nature and extent of their property, the ‘natural objects’ of the disposition of their property, and the testamentary provisions that they are making. They also have to be capable of appreciating these factors in relation to each other, and ‘forming an orderly desire’ concerning the disposition of their property”.

If all of the provisions of the Wills, Estates and Succession Act (WESA) are complied with. The deceased reviewed and appeared to understand the will when they signed it, then “there is a rebuttable presumption that they had the testamentary capacity.” This presumption of testamentary capacity “can be rebutted by the presence of suspicious circumstances for the execution of the will, or the capacity of the testator.” If either of those circumstances can be demonstrated (i.e., that the deceased lacks testamentary capacity or that there were suspicious circumstances around the creation of the will), then the presumption is considered to be “spent” such that the party who seeks to prove the validity of the will bears the burden of proving all of the essential elements outlined above.

The person who opposes the proof in solemn form may provide evidence of undue evidence exerted over the testator or of fraud in the creation of the will to counter the certification of the will. Moreover, section 52 of the WESA indicates that the party who seeks to uphold the will bears the burden of rebutting any claim of undue influence if these specific circumstances exist. There is a claim that a will arose due to circumstances in which some third party was positioned to influence or dominate the testator’s intentions in making the will. That person used their position to unduly influence the testator to make the will (or provisions thereof that are challenged). In the absence of such proof, it is still open to a party opposing the will to prove actual undue influence, which “requires proof of influence amounting to coercion, resulting in a will that did not reflect the deceased’s true intentions and was not their own act.” 

Application of the Legal Principles to the Facts of This Case

The court considered extensive evidence and witness testimony in this case and carefully reviewed the evidence of R.R.’s family physician, Dr. Screen, who had seen R.R. many times in the 15 years since he took over the practice of R.R.’s former physician, Dr. Fedorchuk, in 2005. Dr. Screen testified that R.R had suffered from “mental retardation” that at times appeared mild and other times appeared moderate. Dr. Screen testified that R.R.’s mental capacity had diminished over time such that, at the time of his passing, R.R. “had extremely limited ability to understand not only financial decisions but also a limited ability to function and participate socially in society.” 

Based on Dr. Screen’s testimony, the court was satisfied that R.R.’s ability to understand and appreciate the extent of his property and financial situation was sufficiently compromised to invalidate the 2019 will. However, the court also found that R.R.’s intellectual limitations were lifelong, which meant that “he also would not have had the necessary understanding of the extent of his property or, it is likely, the other elements of testamentary capacity, to make the 1979 will”. In these circumstances, neither the 1979 nor 2019 will could be satisfactorily proven in solemn form, given that the testator, R.R., lacked the testamentary capacity required to form either will. As such, neither will was validated by the court as having been proven in solemn form.

Contact the Estate Lawyers at Meridian Law Group for Advice on Your Will and Estate

The estate litigation lawyers at Meridian Law Group are experienced in all facets of estate litigation, including dealing with problem executors, powers of attorney, trust disagreements, and disputes over the interpretation of a will. Meridian Law Group’s estate lawyers have the knowledge and skill to compassionately and competently handle your estate matter and ensure that your rights are asserted and protected throughout all proceedings. Contact us online or by telephone at (604) 687-2277 to schedule a confidential meeting.