/ Estates

Testamentary Capacity - Who can make a will?

In the majority of will challenges, testamentary capacity is often the main issue of the case. Will drafting lawyers are strongly encouraged to determine their client’s mental capacity for the purposes of signing a Will. Lawyers should assess whether their client has a sound disposing mind and has:

  1. An appreciation of the nature of the will and its effects
  2. An appreciation of their assets and liabilities (what property is being disposed of)
  3. An appreciation of any legal and moral claims that might be made against the estate (perhaps why someone is being excluded from the Will)

For the purposes of determining testamentary capacity, courts will consider the age of the client, whether the client suffered from any illnesses, if there was any significant dependency on others, language barriers, if children accompanied the testator to their appointment, as well as any significant departures from previous Wills.

Lawyers should make full notes to file at the time the Will is made, detailing any particulars about the estate, the clients wishes and whether the client understood the instructions they were providing. In the event the Will is challenged, the lawyer can provide evidence to the courts to prove that the testator had capacity at the time the Will was made and signed.

Why is testamentary capacity important? If the person is found to be incapable when the Will was made, it can be invalidated by the courts. If an earlier Will existed, and the individual had capacity at the time that Will was made, the terms of that Will would dictate how the estate is distributed. If there was no previous Will, the person will be found to have died intestate (without a will) and that person’s estate would be distributed in accordance with the Succession Law Reform Act and not in accordance with the person’s wishes.