Testamentary Capacity in Canada

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General Principles

The caselaw states that the testator must possess a soundness of mind. Halsbury’s Laws of England, snd Ed., vol. 34, p. 37, states “It is necessary for the validity of a will that the testator should be of sound mind, memory, and understanding, words which time out of mind have been held to mean sound disposing mind, and to import sufficient capacity to deal with and appreciate the various dispositions of property to which the testator is about to affix his signature . . .”. A testator may have testamentary capacity even though suffering from Alzheimer’s disease – see Stevens v. Crawford (2001), 281 A.R. 201; 248 W.A.C. 201 (C.A.). A testator was held to lack the necessary capacity where he suffered from delusions – see Fuller Estate v. Fuller (2004), 197 B.C.A.C. 245; 323 W.A.C. 245 (C.A.).

Presumption of capacity

The New Brunswick Court of Appeal stated that “there is a presumption of testamentary capacity … It is only where the trial judge accepts that there are suspicious circumstances that proof of capacity will have to be made on a balance of probabilities.” See Clark Estate, Re (1996), 180 N.B.R.(2d) 379; 458 A.P.R. 379 (C.A.).

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This entry was last updated: February 13, 2017