Testamentary Capacity – Approval, Influence, and Fraud

Testamentary Capacity – Approval, Influence, and Fraud

Knowledge and Approval

To establish testamentary capacity, the testator must have both knowledge and approval of the contents of his or her will. Approval suggests voluntariness. However, it is possible to have capacity that is not subject to undue influence, and yet still be unaware of the contents of one’s will. There is some overlap between knowledge and approval and undue influence.

Red Flags could be an indication that the testator did not have knowledge and provide approval, including the following:

  • physical difficulties such as vision or hearing problems
  • illiteracy
  • terms of the will were in language or legalese that testator could not understand
  • unexplained radical departure from previous wills
  • manipulative behaviour by the main beneficiary to obtain all of the deceased’s assets
  • presence of a new lawyer
  • absence of ILA (independent legal advice)
  • statements or actions by testator subsequent to alleged will were fundamentally inconsistent with its terms

Suspicious Circumstances

Suspicious circumstances are factual circumstances surrounding the preparation and execution of a will that cast doubt on testamentary capacity and the validity of the will.

On their own, suspicious circumstances are not enough to invalidate a will. However, the court ought not to validate a gift unless suspicious circumstances have been reasonably explained to the satisfaction of the court (Barry v Bultin). Where suspicious circumstances are present, the presumption that the will was duly executed is spent and the propounder of the will has legal burden to prove knowledge and approval and/or testamentary capacity. Where fraud or undue influence is alleged, the onus continues to rest on those alleging it.

Undue Influence

Undue influence is the lack of a true testamentary wish of the testator, and the presence of the wish of someone else.

It is to poison the mind of the testator against the original beneficiary – one must show that the testator believed the accusations and that this influenced his or her disposition towards the original beneficiary (Mayrand v Dussault).

Undue influence invalidates a will because voluntariness is absent.

Undue influence is a species of fraud, so allegations of undue influence are taken very seriously. Wrongful allegations attract cost penalties against the person making the allegation.

The key word is “unduly” because actions are often the result of at least some influence among others, but “undue” influences are not acceptable. Unlike “due” influence, undue influences take something away from the authenticity of a testamentary wish.

Undue influence represents a degree of influence from some external source. This overpowers or dominates what would otherwise be the voluntary actions of the testator. It is a form of coercion.


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