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Challenging Testamentary Capacity

Leslie Taylor

In estate matters, disgruntled heirs frequently challenge a deceased family member’s will by arguing that the deceased testator did not have capacity at the time the will was completed.

Burden of Proof

Those challenging a testator’s capacity are faced with overcoming the following presumption: upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity, (see Vout v Hay, [1995] 2 SCR 876, 1995 CanLII 105 (SCC) at paragraph 26).

In order to rebut the above presumption in favour of testamentary capacity, the person challenging a will may raise suspicious circumstances by:

(1) the circumstances surrounding the preparation of the will,

(2) circumstances calling into question the capacity of the testator, or

(3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud. (see Vout at paragraph 25)

The first two suspicious circumstances are met by pointing to some evidence which, if accepted, would tend to negate knowledge and approval or testamentary capacity. Upon suspicious circumstances being raised and a genuine issue being established, the person attempting to prove a will resumes the burden of proving testamentary capacity (see Mawhinney v Scobie, 2019 ABCA 76 at paragraph 35).

Requirements of Testamentary Capacity

In order to prove testamentary capacity, the person attempting to prove the will must establish the following five requirements.

The testator must be sufficiently clear in his understanding and memory to know, on his own, and in a general way:

(1) the nature and extent of his property;

(2) the persons who are the natural objects of his bounty; and

(3) the testamentary provisions he is making;

and he 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 his property.

(see: Schwartz v Schwartz, 1970 CanLII 32 (ONCA), affirmed [1972] SCR 150, 1970 CanLII 17 (SCC)).

Importantly, testamentary capacity is a question of fact, considering all the relevant circumstances and for which medical evidence is not required (see: From Estate, 2019 ABQB 988 at paragraph 121).

Furthermore, testamentary capacity may still be found where the testator was of deteriorating mental condition:

Likewise, deteriorating mental condition does not rule out testamentary capacity. As stated in Stevens, “a testator may have testamentary capacity even if she is not of entirely sound mind . . . [and a] person diagnosed with senile dementia may have testamentary capacity” (para 18, citations omitted).

These cautions are based on the fact that “testamentary capacity is time specific and task specific” (From Estate, para 129). Someone may have only temporary periods of rational and lucid behaviour but during those periods have testamentary capacity, which is why the relevant time for assessment is when the will was made: From Estate, para 129 and cases cited. Thus, the testator’s state of mind “one year before or one year after the date of the document is not overly relevant” in many cases: Weidenberger Estate, Re , para 28.

(See Re Arena Estate, 2020 ABQB 206 at paragraphs 87 and 88)

Case Example

The recent decision of Re Arena Estate, 2020 ABQB 206, provides a glimpse into the Court’s analysis of testamentary capacity in the context of suspicious circumstances surrounding a hand written document alleged to be a holographic will.

The Court found the low threshold for suspicious circumstances was met based the following evidence:

  • Various relevant handwritten letters, all undated and difficult to place in a chronological framework;
  • Differences in the expression of the testator’s intention with respect to the property, among the letters and the audio recordings;
  • The purported will being written in four different types of ink;
  • The testator having a formal will about which no one heard her express any concerns;
  • Surreptitious recordings adding further confusion and questions; and
  • The weight of the evidence indicating that the testator was beginning to suffer some mental confusion and memory loss (see paragraph 99).

Accordingly, the burden shifted to the daughter, who had applied to prove the purported holographic will, to prove the testamentary capacity of her deceased mother:

Notwithstanding evidence of the testator demonstrating memory loss, difficulty recognizing familiar people, formal diagnosis of Alzheimer’s disease, and disorientation as to time and space, the Court made the following findings in respect of testamentary capacity:

  • The whole of the evidence only shows that the testator had increasing difficulties in short-term memory and occasional problems recognizing family members;
  • Until her last hospitalization, the testator remained able to interact with family members, generally recognizing who they were (at least those who spent time with her), was fully aware of the property she owned, and had enough awareness of financial matters to conduct basic cash banking at a teller’s desk (while accompanied); and
  • In reviewing the purported will:
    • That the testator was aware of the importance of her main asset, namely her house;
    • That the testator was aware of her many children, and why she might choose to them or disregard any of them, for example, she considered whether they had shown an interest in her life and whether they were in need of financial assistance;
    • That there were no material contradictions in the main thrust of the document; and
    • That the minor duplication involving contents of the dining room and the front room in connection with the entire estate does not cause doubt about her overall intention (see paragraphs 113 to 115).

Ultimately, notwithstanding the suspicious circumstances which had been raised, the Court concluded on a balance of probabilities that the testator had testamentary capacity when she wrote and signed the holographic will (see paragraph 116).


2021-03-09T21:39:02+00:00March 16, 2021|Estate Litigation|
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