Proving Lack of Testamentary Capacity After Death in Ontario

You may be sure a parent with dementia did not understand what was in their will when they signed it. After a death, that belief can feel urgent, especially if the will changed shortly before and left some family members out. The question for a court is not whether the will seems fair. It is whether the legal requirements for a valid will were met.

This article explains in plain terms who has to prove what in Ontario, how a challenger gets past the starting presumption, and what kinds of evidence tend to be relevant. It is general information. A will challenge turns on the exact facts and on strict timing, so speak to an estates lawyer early.

Who has to prove what

The person asking the court to accept the will is called the propounder. In Ontario, the propounder has the legal burden of proving three things: that the will was properly executed, that the person knew and approved of its contents, and that the person had testamentary capacity.

That sounds like a heavy load for the family member defending the will, but there is a starting presumption. Once due execution is shown, a rebuttable presumption places an evidential burden on the people challenging the will. In plain words, the will is treated as valid unless the challenger comes forward with something that gives the court real reason to doubt it.

How a challenger meets the burden

A challenger can meet that evidential burden by pointing to suspicious circumstances. These are facts that tend to negate either knowledge and approval of the will or testamentary capacity. If the challenger does this, the legal burden goes back to the person defending the will, who must then prove the will is valid.

Undue influence is treated differently. If you allege that someone pressured the parent into signing, the burden of proving that is on those attacking the will. Lack of capacity and undue influence are separate arguments, even though they often appear together in the same family dispute.

Dementia is not the same as incapacity

A diagnosis of dementia tells a court that a person had a medical condition. It does not by itself answer whether they could make a will on a particular day. Ontario's general guidance on mental capacity makes a related point for other decisions: capacity is decision-specific and can change over time. Many people with dementia have better and worse periods, so the timing of the signing matters.

Be careful about borrowing tests from other areas. The Ontario guidance describes a person as incapable of a decision if they cannot understand the information relevant to it or the consequences of making or not making it, and that is the test for managing property and granting a power of attorney. It is not the test used for making a will. A lawyer can explain the will-making test and how courts apply it to your facts.

Evidence that tends to matter

Courts look at the whole picture around the time the will was signed. The following kinds of material are commonly gathered, although what is useful depends on the case.

• Medical records, including family doctor notes, assessments by other doctors, hospital charts and any cognitive testing, especially from near the signing date.
• Records from long-term care or retirement homes, and from home-care workers who saw the person day to day.
• The will itself, earlier wills and any drafts, to see how much the terms changed and whether the change makes sense.
• The lawyer's file, including notes of meetings, instructions given and who was present.
• Statements from the witnesses who watched the will being signed and from people who saw the parent around that time.
• Evidence of unusual behaviour, such as confusion about family members, assets or where they were living.

Records can be hard to obtain after a death, and who may request them is a question to raise with a lawyer.

What to do next

If you are considering a challenge, start by organizing what you know and avoid actions that could make matters worse, such as confronting other family members or removing documents from the home.

• Find out who the estate trustee is and whether the will has been submitted to court for probate.
• Write down dates: when the will was signed, when symptoms started, and when any diagnosis was made.
• List the doctors, care homes, lawyers and witnesses who may have relevant information.
• Keep copies of every will, draft and letter you can lawfully access.
• Do not sign releases or accept distributions before getting advice, because they may affect your options.
• Book a meeting with an estates lawyer soon, since deadlines and procedural steps can apply.

Frequently asked questions