Can a BC Court Order a Capacity Assessment in an Estate Dispute?

If you are worried about a vulnerable relative, you may wonder whether anyone can order a formal assessment of their capacity. If the relative has died, you may wonder how capacity can be proved after the fact.

This article explains how capacity fits into BC will law and what evidence usually matters. It does not promise that any one tool is available, because that depends on your facts and on the type of proceeding.

This article covers the law of British Columbia.

What the law asks about capacity

Under the Wills, Estates and Succession Act (WESA), s. 36(1), a person who is 16 years of age or older and who is mentally capable of doing so may make a will. A will made by a person under 16 is not valid, and age is separate from capacity: someone 16 or older can make a will only if mentally capable.

WESA sets the requirement of being mentally capable but does not itself define the test. The test comes from case law, which BC courts apply together with s. 36. Banks v Goodfellow (1870) is described as the leading authority on testamentary capacity and is still applied about 150 years later.

How capacity applies to a person with memory problems or illness depends on the situation, so it is worth confirming with a lawyer.

Capacity evidence after a death

When a will is challenged after death, no one can examine the will-maker. Evidence usually comes from records and from people who saw the will-maker around the time of signing. A professional may be asked to review those records and give an opinion looking backward. How much weight a court gives such an opinion depends on the case.

• Medical and care records from the period around the will.
• Notes or files from whoever drafted the will.
• Accounts from witnesses and others who dealt with the will-maker.
• Earlier wills, which show whether the change was out of character.

If suspicious circumstances relate to mental capacity, the person propounding the will reassumes the legal burden of establishing testamentary capacity. Suspicious circumstances do not raise the standard of proof, which remains the balance of probabilities. Capacity questions are decided when a person applies to the Supreme Court for an order proving the will in solemn form under Rule 25-15.

Concerns about someone who is still alive

Whether a will can be challenged while your relative is still alive depends on your situation, so it is worth confirming with a lawyer.

Whether a court can order an assessment of a living person, and who may ask for one, depends on the type of proceeding and the facts, so it is worth confirming with a lawyer.

In the meantime, you can help preserve evidence by noting dates, keeping copies of documents and recording observations of how your relative is functioning.

Getting documents and original wills

Under WESA s. 123, the court may order a person with control or possession of certain documents or property to produce and bring them to court. A challenger can use this to obtain original wills and related documents.

Probate itself checks that a will was made without fraud or undue influence, but the government guide says that does not replace the advice of a lawyer.

What to do next

If a probate application is underway, a person receiving notice may oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10. Filing it prevents a grant from being issued before the person can apply for an order requiring security. The personal representative must not distribute the estate within the 210 days following the grant, except by court order.

• List every will and the dates they were signed.
• Note who might hold medical, care or lawyer's records.
• Check whether notice of a probate application has arrived.
• Ask a lawyer how capacity evidence could be gathered in your situation.

Frequently asked questions