Troubleshooting an eldercare law practice: Testamentary capacity

Published in The Lawyer’s Daily, August 7, 2018

By Tony Baker

I was recently asked what the three most pressing issues in my solicitor’s estates practice were. My short answer was testamentary capacity, choice of executors and warring in- laws.

There is no single definition or general test for capacity. It is issue specific, time specific and situation specific. Capacity can change. There is a legal presumption in favour of capacity.

Generally, in order for a testator (or testatrix) to have the legal capacity to make a will, they must be able to both understand the information relevant in making the will and the ability to appreciate the consequences of their decision as to where their estate’s assets are going. The so called “golden rule” regarding capacity to make a will was set out in the 1870 English case of Banks v. Goodfellow:

“A testator must understand the nature of the will and its effect. This does not require a full understanding of the legal terminology of the will; however a broad understanding of the will’s effect is essential.

“A testator must have some idea of the extent of the property of which they are disposing. This need not be an inventory which breaks down into an intricate detailed list, but the testator must appreciate the extent of their wealth.

“A testator must be aware of the persons for whom he would usually be expected to provide (even if he chooses not to) and must be free from any delusion of the mind that would cause him reason not to benefit those people.”

Capacity is therefore the ability to understand consequences of wishes expressed in the will. It is not the wisdom of the testator’s choice that counts. In our free and democratic country, we have the right to make foolish decisions. In estates law, after our testator is gone, the only person who can really explain the contents of a contested will is gone too.

Historically, judges have tended to pay all lawyers’ fees directly from the estate for this reason. However, in Ontario there has been a movement towards “loser pays” costs. If mom left everything to the Church of Scientology in a will made just before she died, one or more of her children may well take a run at the estate, alleging that she lacked mental capacity at the time the will was signed.

I have several clients who are over 100 years old. Some have dementia. Some have Alzheimer’s disease. This is where the “free from any delusion of the mind” in the aforementioned golden rule case becomes problematic. The presence of a mental disorder does not preclude the ability to make a will. My 100-plus year old clients have good days and bad days. They can be capable one day, but not the next.

If I am nervous about the possibility of an attack on the estate of my elderly client after they are gone, I will make sure I “paper the file” in order to protect myself against a claim alleging solicitor’s negligence. I will ask my clients some of the following questions:

Why did you decide to divide the estate in this particular fashion?
Do you understand how individual A might feel, having been excluded from the will or having been given significantly less than previously expected or promised?
Do you understand the economic implications for individual B of this particular distribution in your will?
Can you tell me about the important relationships in your family and others close to you?
Can you describe the nature of any family or personal disputes or tensions that may have influenced your distribution of assets?

As long as they show me that they are able to understand the consequences of their decisions, I am happy to take instructions to draft a will reflecting their wishes. If they want to leave it all to the Church of Scientology, because it is the only thing that gives their life meaning and they are estranged from their children, that’s their capable decision and they have the right to do so.

This is the first of a two-part series. Part two will address choice of executor and warring in-laws.

Tony Baker operates a law practice in Toronto specializing in the areas of estates. He has been a mediator with YorkStreet Dispute Resolution Group since 2002. YorkStreet provides mediation, arbitration and customized dispute resolution services throughout Ontario including a new Eldercare Dispute Resolution process.

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