Capacity to make a will: A Legal Question, Not a Medical Question says Supreme Court

In Nykoryak v. Anderson 2017 BCSC 1800, A 93 year old testator prepared a new will leaving his estate to two of his three children, excluding his first born and granddaughter. He passed away shortly after. The excluded child and granddaughter disputed that the deceased had the testamentary capacity to make a will and brought an application for summary trial to determine the issue. Unlike a regular trial, at a summary trial evidence can only be given by affidavit, examination for discovery excerpts, admissions or expert reports. There is no oral testimony or cross examination as of right. The plaintiffs wanted to adjourn the summary trial in order to obtain additional medical records on the chance they may disclose some evidence about the deceased’s mental capacity at the time he made the will and to cross examine the lawyer and doctor on their affidavits.

A person’s capacity to make a will is not a medical question but a legal question. Mr. Justice G.C. Weatherill summarized the legal test for testamentary capacity from Bull Estate v. Bull, 2015 BCSC 136:

[114]    The test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his/her ability to manage other aspects of his/her affairs is impaired.

[115]    Simply having an imperfect or impaired memory does not in of itself absent testamentary capacity unless it is so great as to leave no disposing memory: Banks v. Goodfellow (1870), L.R. 5 Q.B. 549. A disposing mind and memory is “one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revoking of existing dispositions and the like …” (Moore v. Drummond, 2012 BCSC 1702 at para. 34).

[116]    The testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his/her property of which he/she is disposing: Allart Estate v. Allart, 2014 BCSC 2211 at para. 30; Leung at para. 27 and Laszlo v. Lawton, 2013 BCSC 305 at para. 158.

[117]    Because testamentary capacity is a legal question and not a medical question, a medical opinion, although valuable and relevant, is not determinative of testamentary capacity: Leung at para. 62 and Laszlo at para. 190.

A testator will have testamentary capacity when they understand the nature and effect of their will, recollect the nature and extent of their property, understand the extent of what they are giving under the will, remember the persons she might be expected to benefit under her will and must understand the nature of the claims that may be made by a person she is excluding from the will.

Mr. Justice G.C. Weatherill approved a recent Ontario court ruling in Birtzu v. McCron, 2017 ONSC 1420, finding that isolated memory or other cognitive deficits do not establish lack of testamentary capacity. An occasional lapse in memory does not in itself negate capacity.

Mr. Justice G.C. Weatherill dismissed the plaintiff’s application finding that the plaintiffs have had the affidavits they wished to cross examine on since August 1, 2017 but took no steps to do so and the evidence of the lawyer that the deceased had capacity was contradicted. He found that at the time of the will, the deceased had the testamentary capacity to make his will.

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