Test for Mental Capacity to Make a Will in British Columbia

If you doubt that someone could make a will, you probably want a checklist of the questions a court will ask. The honest answer is that the law sets a framework, and the outcome turns on evidence about the particular person.

This article walks through the framework used in British Columbia: the statute, the case law, who has to prove what, and the practical steps and timing points to be aware of.

This article covers the law of British Columbia.

Step one: the statutory requirements

Section 36(1) of the Wills, Estates and Succession Act says a person who is 16 or older and mentally capable of doing so may make a will. A will made by a person under 16 is not valid.

The Act does not define "mentally capable". That test is supplied by case law, which BC courts apply with section 36. The leading authority is Banks v Goodfellow (1870), whose wording has stayed the same while later cases refined its criteria.

Step two: the questions the courts ask

The case law test is a set of questions about the will-maker's mind. One of them deals with delusions: the Supreme Court of Canada applied the test to insane delusions affecting a will-maker's gifts in Ouderkirk v. Ouderkirk. The full list of questions and their current wording is best confirmed with a lawyer who can review the judgments.

Capacity is judged on the evidence in each case. Different kinds of evidence may matter, such as witness accounts and records from around the time the will was made, but how a court weighs them depends on the facts.

Step three: who has to prove what

The burden of proof is often the deciding issue. Capacity is presumed, and suspicious circumstances can rebut that presumption. Where the suspicious circumstances relate to mental capacity, the person propounding the will reassumes the legal burden of establishing capacity.

Suspicious circumstances do not raise the standard of proof, which stays at the balance of probabilities, but the evidence is scrutinized in line with the gravity of the suspicion. The s. 52 reversal applies only once the challenger has shown a position of potential dependence or domination; without that, the ordinary rule applies.

Step four: where and when it is decided

A person who receives notice of a probate application can oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10. A formal challenge is made by applying for an order proving the will in solemn form under Rule 25-15.

• The personal representative must not distribute the estate within 210 days after the grant, except by court order.
• For claims the Limitation Act covers, the basic limitation period is 2 years from the day a claim is discovered, and the ultimate period is 15 years from the day of the act or omission, subject to Parts 4 and 5 of that Act. Whether the Act governs a particular validity challenge depends on the facts and is worth confirming with a lawyer.
• The Limitation Act does not apply to a claim or court proceeding that has a limitation period set under another enactment, except as that enactment provides. There are also postponement rules for minors and persons under a disability.
• Whether any of these periods governs a particular validity challenge depends on the facts, so confirm the deadline with a lawyer.
• A different claim, a wills variation proceeding by a spouse or child, must be commenced within 180 days from the date the representation grant is issued in British Columbia.

What to do next

If you believe a will-maker lacked capacity, concentrate on preserving evidence and getting timing advice early. If you cannot show incapacity or undue influence but you are a disinherited spouse or child, the court may order provision out of the estate where a will does not make adequate provision for proper maintenance and support.

• Confirm whether a grant has been applied for or issued, and the dates.
• Obtain copies of the current and earlier wills.
• List people who saw the will-maker around the time the will was made.
• Keep notes of any pressure or unusual events surrounding the will.
• Book a consultation with a lawyer about deadlines before taking court steps.

Frequently asked questions