For over a century, the question of whether a person has the legal capacity to make a will, can be determined according to the test originally set out in the leading case of Banks v. Goodfellow (1870). That case required that the will-maker is of a “sound and disposing mind and memory.” In that regard, the case sets out the following four criteria:
(1) The will-maker must understand that they are making a will;
(2) The will-maker must know the nature and extent of their property;
(3) The will-maker must know the persons who are the object of their bounty; and,
(4) The will-maker must understand the manner in which their estate will be distributed.
In Laszlo v. Lawton (2013), the Supreme Court of British Columbia adopted a modern restatement of this test. The will-maker must be sufficiently clear in his or her understanding and memory to know, without the assistance of others, and in a general way:
(1) the nature and extent of the will-maker’s property;
(2) the persons who are the natural objects of the will-maker’s bounty; and,
(3) the testamentary provisions the will-maker is making; and the will-maker must, moreover, be capable of:
(4) appreciating these factors in relation to each other, and
(5) forming an orderly desire as to the disposition of the will-makers property.
With respect to the requirement of knowledge of the will-maker’s property, the will-maker need not recall every item of, for example, an extensive portfolio of stock or real estate which passes under the will.
The phrase “persons who are the object of their bounty” includes not only those who are actual beneficiaries in the will, but those who could have “moral claims” to the estate. The courts have generally restricted this class to spouses, children and those to whom the will-maker stood in loco parentis. The will-maker must understand what they are giving to each beneficiary, and the nature of the claims of those they are excluding.
It is also important to bear in mind, that testamentary capacity is a legal construct, not a medical diagnosis. Medical evidence of capacity is therefore important and relevant but not essential or conclusive, and it is open to the court to prefer the evidence of lay witnesses in a particular case.
If you have any questions or would like advice related to will preparation, estate planning or probate of an estate, or if you have questions in relation to matters of real estate, corporate law, intellectual property and trust matters, please contact us at 604-688-4900 or by email to Paul Barbeau at paul@barbeau.co or to Morgan Best at morgan@barbeau.co