In law, there is a presumption of testamentary capacity when an adult executes a will. The legal test for testamentary capacity initially set out in Banks v Goodfellow and adopted by the Supreme Court of Canada in Ouderkirk v Ouderkirk, can be summarized as follow:
- The testator must understand the nature of the will and its effect;
- The testator must understand the extent of the property of which he/she is disposing;
- The testator must be able to understand and appreciate the claims to which he/she ought to give efffect; and
- The testator must not be suffering from a "disorder of the mind," which would influence his/her ability to dispose of his/her property that, if the mind had been "sound", would not have been made.
Often, the first phone call an estate planning lawyer receives is from an adult child of an elderly person. While many are trying to be helpful to their elderly parent, lawyers need to be cognizant and aware of any indicators of undue influence or if any suspicious circumstances are present.
Part of this process includes meeting with your client alone, determining the type of relationship that exists between your client, their children and other family members. If their adult children want to be part of the process, or if your client is insisting on having their children present, it is critical to explain to your client why it is not advisable and the type of duty you owe to your client.
Be aware of any indicators of capacity or undue influence and know the difference. Sometimes both these issues can be at play at the same time. If you are concerned, consider declining the retainer where there is significant reason to believe undue influence may be at play. If capacity is at issue, it would be wise to obtain a second opinion from an assessor.
Issues of capacity, if they arise can be complicated, it is important to be respectful of your client’s dignity and ability to make decisions for themselves but also be absolutely certain your client has the capacity to execute the documents in question. Otherwise, you are on the hook and can look forward to an unsavoury phone call with LawPro!