Before You Sign Your Will: What You Need to Know About Testamentary Capacity

Written by: Grace Snider

A will is one of the most important documents you will create in your life. Your will allows you to decide what will happen to your assets and debts after you pass away, appoint someone to manage your estate, and provides certainty for your loved ones during a difficult time.

Many individuals choose to draft their will when they get married, have children, or reach a certain age. In Alberta, any person eighteen (18) years of age or older who is has mental capacity can create a will. A person who creates a will is known as a testator.

Preparing a Will

While it is not advised, you are able to prepare your own will without assistance from a lawyer. This will can be handwritten or typed.

If it is handwritten, it is called a holographic will. A holographic will does not need to be witnessed, but it must be written entirely by the testator’s own handwriting and must be signed by the testator.

If the will is typed, it must be witnessed by at least two (2) other people who are present at the same time as the testator, and who watch the testator sign the will. It is recommended that you or your loved ones work with a lawyer to assist with this process, as it can be confusing and difficult to deal with on your own.

What is Testamentary Capacity?

Regardless of how a will is prepared, it will only be considered valid if the person writing it has testamentary capacity. To have testamentary capacity, the testator must have a clear understanding of:

1) the types and amounts of assets they own;

2) the individuals who would naturally benefit from their estate, such as their spouse,

children, or other family members; and

3) the specific provisions they want to make in their will.

The testator must appreciate these three factors in relation to each other when describing their intentions for how their property is to be distributed.

Testamentary capacity is not a medical diagnosis.

Individuals with mental illness, cognitive impairment or dementia can be found to have testamentary capacity if, at the time they executed their will, they understood what they were doing and made reasonable decisions about how they were distributing their estate.

Testamentary capacity is time specific and task specific.

The relevant point in time to assess testamentary capacity is when an individual is creating and signing their will.

How Can I Ensure I Have Testamentary Capacity?

When a testator signs a will on their own, there is no one available to consider capacity at the relevant time. Even if a testator has their friends or family witness their will, most people will not be trained in how to assess capacity and will not even think to do so. To avoid issues with testamentary capacity, when a testator executes their will, witnesses should be present and ensure that the testator has a clear understanding of the contents of their will.

The best way to ensure testamentary capacity and execute a valid will is to hire a lawyer to assist in preparing your estate planning documents.

SB LLP: Your Trusted Will Lawyers in Edmonton

At SB LLP, we specialize in Wills and Estates planning. We assist clients with navigating the estate process, including preparing, signing, and witnessing your Will, Enduring Power of Attorney, and Personal Directive.

Feel free to contact one of our Wills and Estates lawyers should you require further information or assistance.

*Disclaimer: This article provides legal information and is not intended nor to be construed to provide legal advice.