Estate Planning: Testamentary Capacity

In order to make a valid will in any province in Canada, the testator (or will maker) must have a sound dispositive mind or testamentary capacity.

What this means is largely driven by case law, but as with most areas of law, the doctrine of testamentary capacity is both legislative and precedential. There are many facets of testamentary capacity, including the requisite degrees of knowledge and approval, and the effect of undue influence on a testator’s mind. This article will touch on testamentary capacity and what the jurisprudence has labeled as the delusionary testator.

If one is declared incapable of managing their affairs—a declaration that doctors may provide in committeeship proceedings—this does not confirm a lack of testamentary capacity as medical evidence is persuasive, not conclusive. The case law has established that “so far as evidence based on observation and experience is concerned, [it] may be answered as well by laymen of good sense as by doctors”.[1]

Since the test of capacity is ultimately a legal question, one of the leading cases on the topic throughout the common law remains Banks v. Goodfellow, an 1870 decision from the United Kingdom. In that decision Cockburn C.J. described what a sound mind and memory are in the context of testamentary capacity:

“In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, the persons who are the object of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed and the disposition of his property in its simple forms.”