25 Jan Testamentary Capacity in Ontario – General Rules
About Mental Capacity
Rules around testamentary capacity in Ontario state that the capacity required to create a valid will in the Province of Ontario is the highest degree of mental capacity at law (Re Banton).
The testator must have a “sound disposing mind” to understand and appreciate the following at the time of execution (with the exception of Parker, where it was accepted that the testatrix had the capacity at the time she provided instructions):
- An appreciation of the nature of the will and its effects
- Appreciation of one’s assets and liabilities (i.e. the extent of the property being disposed of)
- Appreciation of any and all possible legal and moral claims that might be made against the estate
- Absence of any mental illness that might in some way influence the terms of the will (i.e. both general insanity and insane delusions or hallucinations) (Banks)
Each matter is to be decided on a case-by-case basis. The court will consider:
- Age, history of progressive impairment, radical departure from prior wills, and evidence of lay persons (Davis)
- Mental deficit, dependency on others, presence of children with ulterior motives, dates and time frames of any wills and whether there was a radical departure from prior wills (Banks)
To establish testamentary capacity in Ontario it is not enough to make a rational response or to repeat a tutored formula. The testator must be “free and capable”.
The testator must also have a “power to hold the essential field of mind in some degree of appreciation as a whole” (Leger).
Relevant Date for Testamentary Capacity in Ontario
Generally, one must have capacity at execution, during which it is accepted that the testator must have the requisite testamentary capacity to be signing the will. At the time of execution, the testator needs a sufficient level of capacity to comply with the formalities of execution (i.e. Section 4 of the Succession Law Reform Act). A will may be set aside for failure to comply with formalities of execution. However, in Parker v Felgate the court held that there was sufficient testamentary capacity for a valid will because there was capacity at the time instructions were given, though not at the time the Will was signed.
Types of Interference With Capacity
With general insanity, one is never capable of using mental faculties to understand elements of the test for testamentary capacity in Ontario (i.e. general insanity is permanent).
Insane delusions and hallucinations
This refers to temporary or narrowly focused aspects of diminished capacity through insane delusions or hallucinations.
The mere presence of insane delusions/hallucinations is not enough to invalidate a will. There must be a link or nexus between the mental condition and the person’s will (O’Neill, Supreme Court of Canada).
A question of fact is to be determined on the balance of probabilities (look to contents of will and surrounding circumstances to see if it makes sense)
The test for interference with capacity is:
- Does the interference affect the ability to make a valid will?
- Were the provisions that were made in the will reasonable at or around the time of the will?