How can a lawyer confirm an elderly person has capacity to sign a will in Ontario?

When a lawyer prepares a will for an elderly client — particularly one with known cognitive concerns — best practice includes taking specific steps to confirm and document that the client has testamentary capacity at the time the will is signed.

A lawyer will typically conduct a private interview with the client, without family members or others who might be beneficiaries present. The interview explores whether the client understands the nature and effect of making a will, knows what property they own and its approximate value, recognizes who their natural heirs are (even if they choose not to leave everything to them), and understands that the will captures all of these elements in a binding document.

In cases where there is significant concern about capacity — a recent dementia diagnosis, for example, or conflicting reports from family members — the lawyer may recommend a formal capacity assessment by a physician or a specially trained assessor. A written capacity opinion from a medical professional, obtained close to the date of signing, creates a strong contemporaneous record that can be critical if the will is ever challenged.

The lawyer should also take detailed notes of the meeting and the client's responses. These notes, combined with a medical assessment if obtained, form the evidentiary foundation that supports the will's validity if a challenge arises years later.