Testamentary Capacity – When is someone able to make a will?

Consider the following:  Your mother has always told you that she intended to leave her estate to you and your sister in equal shares.  However, when she dies a wills search reveals that she executed a will approximately one year before her death.  At that time, she was residing in a care facility, and was suffering from mild dementia (although her dementia got much worse in the period leading up to her death).  In this will, she leaves her entire estate to charity.  A noble act, but completely inconsistent with what she told you.  There is a previous will (before any degree of dementia), which distributes her estate equally between you and your sister.

A will-maker must have testamentary capacity

In order to make a valid will, a will-maker must have a baseline level of mental acuity sufficient to appreciate the nature and effect of the testamentary act, referred to as testamentary capacity.  If a testator lacks testamentary capacity at the time that he or she makes a will, then that will is invalid.

When it appears that a testator has left an unusual will, has excluded a beneficiary who ought to have been included, or has made changes to a previous will at a time when their level of capacity is questionable, then the issue of testamentary capacity should be considered.

If a will is held to be invalid because the testator lacked testamentary capacity, then the previous will – made when the testator still had capacity – would continue to be in effect (if such a will exists).

Test for testamentary capacity

The test for testamentary capacity is set out in Banks v. Goodfellow, a decision from the England Queen’s Bench from 1850.  This test continues to be applied today.  The test for testamentary capacity requires the following from the testator at the time the will is made:

  1. understanding the nature of the act of making a will and its consequences;
  2. understanding the extent of one’s assets;
  3. comprehending and appreciating the claims of those who might expect to benefit from the will, both those to be included and excluded;
  4. understanding the impact of the distribution of the assets of the estate; and
  5. that the testator is free of any disorder of mind or delusions that might influence the disposition of his or her assets.

If any of the above requirements are not met, then the testator lacks the capacity to make a valid will.

Otherwise incapable people may still have testamentary capacity

The issue of whether a testator has the capacity to make a will is a highly individualized and fact-specific inquiry, which will depend upon the circumstances of each case.

The test for testamentary capacity is a very specific test.  For example, it is not the same as the test for whether someone is incapable of managing their own affairs.  Although it is recognized that dementia can impair a testator’s mental powers such that he is not capable of making a will, a diagnosis of dementia, standing alone, does not automatically mean that a testator lacks testamentary capacity.  Similarly, a person who is declared incapable of managing his or her affairs pursuant to adult guardianship legislation or suffers a chronic psychotic illness such as schizophrenia may still have the capacity to make a valid will.  Isolated memory or other cognitive deficits on their own do not establish a lack of testamentary capacity.

The relevant considerations are those set out above, from the Banks v. Goodfellow case – the testator must appreciate the extent of her assets, the consequences of her will, and the effect of including and excluding certain persons who might expect to benefit from the will.

Timing is key when considering testamentary capacity

When considering whether a testator had testamentary capacity, timing is key.  The two relevant times are: (1) when the testator gives instructions to draft the will, and (2) when the will is signed.

There are cases in which a testator will have capacity to give instructions, but loses capacity before the will is signed.  In those cases, the will may still be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions (when she had capacity).

Proof/evidence of testamentary capacity

How does one prove (or disprove) capacity?

Testamentary capacity is not a medical diagnosis; it is a legal threshold.  Accordingly, scientific or medical evidence – while important and relevant – is neither essential nor conclusive in determining the presence or absence of testamentary capacity.

The evidence of lay witnesses (such as the observations of family and friends at the relevant time) is often considered by the court when determining whether a testator had testamentary capacity.

Where available, the court will rely upon evidence from the solicitor who prepared the disputed will.  It is important that the drafting solicitor keep detailed notes when capacity is an issue – the will may not be disputed for many years after it is prepared, and the drafting solicitor may have prepared hundreds or even thousands of wills in the meantime, and he or she may have no independent recollection of the testator and the will that they prepared.  In that case, the drafting solicitor must rely upon the file and their notes.

If testamentary capacity is shown, that is not necessarily the end of the matter

Even if the requirements for testamentary capacity are met, there still may be other concerns surrounding the execution of the will.  In particular, where an individual’s mental capacity is diminished, he or she will be more vulnerable to undue influence.  A claim of undue influence can be made in addition to, or in the absence of, a claim that a testator lacked testamentary capacity.