Can Someone With Dementia Still Change a Will in New Brunswick?

When a parent or spouse has dementia, families often worry about whether a will signed or changed during that period will hold up. The worry goes both ways: some want to protect a person's wishes, others suspect those wishes were pushed.

This article explains the ideas courts use, what happens when a will is doubted, and what to gather if you are concerned. It does not decide any particular case, which depends on medical and other evidence.

This article covers the law of New Brunswick.

What testamentary capacity means

Testamentary capacity is the mental ability needed to make a valid will. The Wills Act does not set out the grounds for challenging a will based on capacity, undue influence, fraud or lack of knowledge and approval. These are decided by common-law principles, and the Probate Court follows common law principles absent a contrary provision.

Dementia is a spectrum, and a diagnosis does not by itself answer that question. A lawyer can explain how that evidence is weighed.

Who has to prove what

The Supreme Court of Canada, in Vout v. Hay, holds that the person propounding the will carries the burden on capacity and on knowledge and approval, and that burden shifts back if suspicious circumstances arise. Fraud or undue influence must be proved by those attacking the will. Simply being disappointed or excluded is not itself a ground.

Formalities still count

Even where capacity is not in doubt, a will is valid only if signed at its end by the testator before two or more attesting witnesses present at the same time, who then sign in the testator's presence. Exceptions include holograph wills wholly in the testator's handwriting and signed, which need no witnesses. A court may also declare a document valid as a will if satisfied it embodies the deceased's testamentary intentions despite not meeting formal requirements.

A gift to an attesting witness or the witness's spouse is void as to that person, unless at least two other disinterested witnesses attested. Creditors and executors who witness are not disqualified.

How doubts are raised

A person who expects a challenge can lodge a caveat against a grant with the Registrar or a probate office clerk. It remains in force six months after lodging unless withdrawn, vacated or a notice of intent to contest is filed. The caveator must file a notice of intent to contest in Form 3D within ten days of receiving the warning.

The Probate Court may make interested persons parties to proof of a will in solemn form or to revocation proceedings. Instituting a contested claim or proof in solemn form costs $50, and a caveat or notice of intent to contest costs $25. A party served with a citation who does not file a notice of intent to contest is not entitled to notice of further proceedings.

Dependants have a separate route. A spouse, child or other dependant under the Family Law Act may ask a judge of the Court of King's Bench for support out of the estate, even against a will. The application must generally be made no later than four months after the death.

What to do next

• Note when the will or change was signed and who was present.
• Gather medical records, care notes and observations from around that time, as far as you are entitled to them.
• Find the original will and any earlier wills.
• Watch the short deadlines for caveats and dependants' claims, which run from receiving a warning or from the death.
• Speak to a lawyer before taking steps, since capacity disputes depend heavily on evidence.

Frequently asked questions