A person without mental capacity cannot make a valid Will. This concept, though it may seem obvious, can easily become complicated. This has often led to litigation.

To demonstrate capacity, people who make Wills (called the "testators") must appreciate:

  • the nature and extent of their property;
  • their moral obligations to their dependants and unique family circumstances; and
  • their reasons for excluding any of those who could claim dependant's relief.

Essentially people who make Wills must understand what they own and what consequences their Will may have.

The answers to these questions can vary considerably. For example, it may be clear that someone with advanced dementia lacks capacity. However, the same person, when a capacity assessor drops by, may meet the test. A person's degree of capacity may not always be the same.

Capacity can be a transient thing. People can have good days (when they meet the test), and bad days (when they don't). It can be a matter of when they last slept, and how well. It can also be a matter of other health issues, such as pain leading to narcotic treatment or causing distraction. Capacity can even come and go for no apparent reason.

Before they draft wills, lawyers should form an opinion of the maker's capacity. This is typically done by asking questions. If in doubt, they may ask for an opinion by a capacity assessor. This is a health professional who qualified to give an informed opinion.

Families are generally in the best position to know whether there may be a capacity issue. If there is a doubt that a testator has capacity, as a family member you can:

  • Seek a capacity assessment;
  • Discuss this concern with a lawyer, who will take extra precaution;
  • Keep notes of discussions with the testator about their financial affairs and family obligations.

This issue is far more complicated than can be thoroughly canvassed in a blog post. It is unique in every situation. We will delve into these issues deeper in future blogs posts.

John Hollander

The Estate Law Group at McBride Bond Christian LLP

This is not legal advice. Please consult a lawyer before acting on any of the above comments.

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