Understanding the Capacity to Execute Wills: A Legal Perspective

Written by: Kai Thompson

Introduction:

An individual who executes their Will is commonly referred to as a testator.

For a Will to be valid, the testator of the Will must have testamentary capacity at the time the Will is executed.

This article explores the legal principles to establish testamentary capacity, which have been developed by the Alberta Courts through various decisions over time.

Guiding Principles:

In general, testamentary capacity requires that the testator be of sound mind when executing the Will. This does not mean an individual suffering from diminished cognitive capacity cannot validly execute a Will. The testator must have the mental capacity to understand the following key elements:

1.       The Nature and Effect of the Will: The testator must understand that they are creating a document that outlines how their assets will be distributed after their death. 

2.       The Extent of the Testator's Assets: The testator must have the ability, at the time they execute the Will, to understand, recall, and effectively communicate the nature and value of the assets that form a part of their estate.

3.       Understanding and Memory: The testator must be able to understand all the relevant information regarding the preparation and execution of their Will and must be able to retain said information long enough to make rational decisions regarding the distribution of their assets under their Will.

4.       Undue Influence: The testator must not be suffering from delusions or mental disorders that would either impair their ability to make rational decisions regarding the distribution of their estate or that would cause them to be unduly influenced by others, who may have different plans or ideas for how the testator's estate should be distributed that are contrary to the testator's ultimate wishes.

Capacity is a Fluid Concept:

One of the challenges in conducting a testamentary capacity assessment is the subjective nature of the above-noted factors. Different individuals may have varying levels of cognitive ability, which, if the person is suffering from some form of cognitive impairment, can fluctuate from day-to-day or even hour-to-hour.

Further, the term "capacity” can be subjective and vary depending on the circumstances. For example, a medical doctor, may diagnose that a testator is suffering from a diminished capacity. However, a lawyer assessing that same testator for their capacity to execute a Will may determine that despite the doctor's diagnosis, the testator has sufficient capacity to validly execute a Will.

Differing opinions regarding a testator's capacity often lead to disputes and legal challenges regarding the validity of a Will based on the testator’s mental capacity at the time of execution.

Conclusion:

The capacity to execute a Will is a critical requirement to ensure that a testator’s intentions are accurately reflected in their estate planning and, ultimately, their Will.

Individuals should seek legal advice and guidance when creating a Will to ensure that they meet the necessary capacity requirements.

Obtaining legal advice will help ensure that the testator’s final wishes are accurately captured in their Will and other estate planning documents. 

Further, having a Will executed before a lawyer is a factor that will support the Will being upheld should there be a legal challenge to the Will in the future based on allegations of the testator’s lack of capacity.

Should you or anyone you know require assistance with preparing a Will or dealing with a court challenge to a Will, we encourage you to contact the writer Kai W. Thompson, or any other legal practitioner in our Wills & Estates department.

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