The Delusionary Testator

It is not uncommon for elderly people to form delusionary beliefs about those who should rightfully be named in their will.

This can be as a result of Alzheimer’s/dementia or other causes. There are cases that decide that if such delusions are present and proven, only the part of the will affected by the delusion is invalid; however, the strongest line of cases supports the notion that the entire will is affected and thus invalid.

Case law provides various definitions of delusions. One widely quoted definition is that a delusion is a belief in the existence of something which no rational person could believe and which cannot be eradicated from the will-maker’s mind by reasoned argument.

It is not a question of whether the delusions could have had an influence on the disposition, but rather if the delusions did in fact influence or affect the disposition actually made. This is consistent with the fact that, notwithstanding a mental disorder of some kind, a testator may still make a valid will during a lucid moment.

A large part of the estate solicitor’s job is observing and note taking. Personal and family dynamics can get tricky during these times. Coupled with a potentially vulnerable testator, the lawyer must be vigilant of suspicious circumstances and undue influence. Without proper notes the lawyer may find him- or herself behind the witness stand at court a decade after the will was drawn feeling pretty sheepish.

Greer M. Jacks was called to the Bar of the Province of British Columbia on November 23, 2013. As a practicing lawyer in the city of Victoria under the age of 30, Greer has a unique perspective of wealth preservation and estate planning in his professional and social milieu.