What is BC Testamentary Capacity? The top-rated* estate litigation lawyers at MacLean Estate Litigation deal with issues of mental infirmity and lack of capacity to prepare a valid BC Will. In today’s blog by Rana Yavari, we answer the question: What Is BC Testamentary Capacity? We have Estate Litigation offices across BC located in Vancouver, Surrey, Richmond, Kelowna and Fort St John, BC.
MacLean Estate Litigation – What is BC Testamentary Capacity?
Section 36(1) of the BC Wills, Estates and Succession Act provides that “[a] person who is 16 years of age or older and who is mentally capable of doing so may make a will.”
What is BC Testamentary Capacity? Sound Mind, Memory and Understanding
For a Will to be valid, the person making the Will must be of sound mind, memory, and understanding. This is legally known as having a “testamentary capacity” which means that the person executing the will must:
- Understand that the Will has the effect of distributing his property at the time of his death;
- Be capable of remembering generally what property is subject to distribution by Will;
- Be capable of remembering those persons related to him; and
- Be capable of expressing an intelligent scheme of distribution.
What is BC Testamentary Capacity – The Legal Test
The test to determine whether a Will-maker has testamentary capacity is a legal test and not a medical test. So while it may be helpful and perhaps prudent to have a medical professional assess the Will-maker, the onus is on the solicitor drafting the will to competently evaluate whether the Will-maker is capable of disposing of their estate. At the same time, it is possible that a court may prefer the evidence of lay witnesses, such as friends or family members of the will-maker, to provide evidence on their capacity at the time the Will was made.
When a will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the nature and quality of the act. The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and the nature of the claims of others who are being excluded.
What is BC Testamentary Capacity? – Timing is Key
The court in Laszlo v. Lawton, 2013 BCSC 305 discussed the importance of timing. The first relevant time that testators must have testamentary capacity is when they give will instructions and the second is when the will is executed:
 In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions
 The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time.
Consequences of Failure to Assess Testamentary Capacity
If the testamentary capacity of a person is in question, this may open up a Will to be challenged. Some indications that testamentary capacity might be in issue are the following:
- Large departures from an earlier testamentary document;
- Suspicious circumstances;
- The possibility of undue influence;
- An illness or mental illness present at the time the Will was prepared;
- The knowledge that the Will-maker was on medications or drugs that could have altered their mental state;
- A Will-maker who rushed into preparing the Will on an urgent basis.