Supreme Court Provides Further Clarification on Test for Incapacity


Courts are often asked to determine whether the deceased had sufficient mental ability to execute a Will.  This ability is called “testamentary capacity.”  Many factors are considered in such cases, and courts in British Columbia have long referenced the 1870 English court decision, Banks v. Goodfellow.  There, the court acknowledged that it had a difficult task ahead of it, since the task was fact specific and the person whose testamentary capacity it was to determine had died.  It said:

There is no possibility of mistaking midnight for noon; but at what precise moment twilight becomes darkness is hard to determine.

Some 143 years later, the British Columbia Supreme Court released a comprehensive decision considering in detail the capacity of a woman who had executed a Will in the early stages of dementia.  While the Court expressly stated that “a diagnosis of dementia, standing alone, does not automatically correspond to testamentary incapacity”, it also confirmed that such a diagnosis, and its resulting manifestation in the testator, are relevant factors to be considered.  The court also considered the relationships the deceased had with the beneficiaries under the new (challenged) Will and her relationship with the beneficiaries in her previous Will.  Ultimately, in all of the circumstances, the Court found that the deceased did not have testamentary capacity, and therefore that the new Will was not valid.

While each case of testamentary capacity turns on its own unique facts, this decision is noteworthy for its extensive review of the caselaw since the 1870’s Banks v. Goodfellow.  I would expect to see this case referenced in most of the future British Columbia cases involving testamentary capacity.