In Leonard v. Zychowicz, 2020 ONSC 662, the Superior Court considered the case of a will challenged on the grounds that the testator's history of bipolar disorder meant she lacked testamentary capacity.
During her life, Helene Stella Polomick ("Helene") was diagnosed as bipolar. She was hospitalized at various points in her life.
Helene executed a will in October 2002 which named Cheryl Leonard as her executor and sole beneficiary ("the 2002 Will").
Then in October 2007, Helene executed a new will with solicitor James Sweetlove ("the 2007 Will"). According to Mr. Sweetlove's notes, Helene was upset with Cheryl and wanted her removed from the will. The 2007 Will named Helene's niece, Zara, as the executor and sole beneficiary. The will was properly executed and witnessed, and Mr. Sweetlove had no concerns about Helen's capacity.
Helene died in April 2011 at the age of 86. Zara subsequently applied for probate and was appointed Estate Trustee in April 2011. Cheryl brought a motion the following December, challenging the validity of the 2007 Will.
Specifically, Cheryl claimed that the 2007 Will was prepared under suspicious circumstances, and that Helene lacked testamentary capacity on the grounds that Helene lacked testamentary capacity and an understanding of the will's contents.
Was the 2007 Will valid?
Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) sets out the test for testamentary capacity. The testator must understand the nature of the document and its implications and must have a sound mind (see para 565).
Zara has the burden of proof to establish the will was duly executed and that Helene had testatmentary capacity and understood its contents. Since the will was duly executed and Helene appeared to understand it, Cheryl then has the burden of proving undue influence.
Cheryl can satisfy this burden with evidence of suspicious circumstances surrounding the preparation of the will, the testator's capacity, or suggesting coercion or fraud. See Scott v. Cousins,  O.J. No. 19 and Vout v. Hay,  2 S.C.R. 876.
There was simply no evidence that the 2007 Will was prepared under suspicious circumstances. Mr. Sweetlove had no concerns about Helene's capacity and she understood the extent of her estate, aside from small items. Helene also provided a reason (her falling out with Cheryl) for changing the beneficiary.
Helen's history of bipolar disorder was not sufficient to establish sufficient circumstances in the absence of other medical evidence. The fact that Helene had been hospitalized at various points in her life did not imply that she lacked capacity at the time she signed the will. By all accounts, Helene lived alone, took public transit to visit her husband in the hospital, and was stubbornly independent.
The 2007 Will was found to be valid.
A mental health disorder does not necessarily imply a lack the testamentary capacity. When a will is properly executed and witnessed, the challenger must bring evidence showing that the testator lacked capacity at the time of signing.