The Capacity to Make a Will (What you Need to Know)

Posted on 9 December 2020 Back to News

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Updated November 2022 – It is never too early to begin your Estate planning journey. There are a number of legal requirements to make a valid Will, and you should turn your mind to these, regardless of your age and the state of your health, to ensure that your Estate is administered in accordance with your intentions.

The primary requirement is that an individual must have ‘testamentary capacity’, meaning the mental capacity to create a valid Will. If you delay the process of making a Will or updating an out-of-date Will, you run the risk of losing your ability to do so.

To get a better idea of what exactly ‘testamentary capacity’ means, let’s look at what the law tells us.

Firstly, provincial law presumes that adults have capacity; however, a person’s capacity may be called into question if they attempt to make a Will while suffering from conditions/afflictions that impact their mental state (i.e. dementia).

For a Will to be valid, a Will-maker (“Testator”) must be “free and capable”. They must have a “sound disposing mind” and an understanding of:

  • the nature of the Will and its effects;
  • the extent of their assets and liabilities; and,
  • the legal and moral claims that may be made against the Estate.

Furthermore, the Testator must not be suffering from any mental illness that might influence the terms of the Will.

If the capacity of the Testator is challenged, the Court will consider a number of factors when determining if the Testator had the capacity to create a Will, including, but not limited to:

  • the Testator’s age;
  • any history of progressive impairment;
  • whether there has been a radical departure from prior wills; and,
  • evidence of  any mental deficit, dependency on others, or the presence of children with ulterior motives.

Each matter is to be decided on a case-by-case basis. Our Wills & Estates Lawyers make specific inquiries to consider the capacity of their clients when preparing a Will.

Our Wills & Estates Lawyers also take detailed notes to support their determination of whether or not the Testator had the capacity to create a Will. If the lawyer is unsure about the capacity of an individual to make a Will, capacity assessors are engaged to make this determination.

Please note that, if a person loses their testamentary capacity, an Attorney acting under Power of Attorney does not have the authority to make or amend a Will on their behalf.

Nobody can predict the future, and it is always best to be proactive in your Estate Planning. Providing peace of mind to yourself and your loved ones is worth the effort. Contact one of our Wills & Estates Lawyers today to begin the discussion of your Estate Planning. 

*The content of this article is intended for general information purposes only and does not constitute legal advice or an opinion of any kind.  For information or legal advice on your individual circumstances, please contact Our Wills & Estates Law Team.

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