Testamentary Capacity in Ontario: What Courts Look For

When a parent is seriously ill or in cognitive decline and signs a new will, relatives sometimes wonder whether the parent truly understood what they were doing. That worry is common, and the law has a specific test for it.

This article explains the capacity test used in Ontario courts, how the burden of proof works, and how medical evidence is treated. It is general information only; whether a particular will can be challenged depends on the facts and is worth confirming with a lawyer.

What testamentary capacity means

Testamentary capacity is the mental ability needed to make a valid will. It is a specific legal standard, not a general judgment about whether someone was healthy, forgetful or making wise choices. A person can be unwell, elderly or eccentric and still have capacity to make a will.

Evidence such as the drafting lawyer's observations of the testator can carry weight.

The Banks v. Goodfellow test

The Court of Appeal for Ontario applies the long-standing test from Banks v. Goodfellow. In plain terms, the testator must have met the following requirements.

• They understood the nature and effect of making a will.
• They knew the property they were disposing of.
• They appreciated the claims of those they ought to recognize.
• No disorder of the mind poisoned their affections.
• No insane delusion influenced the will.

The question is not whether the will is fair, or whether you or other family members agree with it. A will that disappoints a child can still be valid if the testator met the test.

Who has to prove capacity

The person propounding the will, usually the named estate trustee, must prove due execution, knowledge and approval, and capacity. Once due execution is shown, the court presumes the testator knew and approved the contents and had capacity.

If suspicious circumstances are shown, that presumption is spent, and the propounder must prove knowledge and approval, and capacity if the suspicion goes to mental capacity. The standard is the balance of probabilities, but the evidence is scrutinized in proportion to the gravity of the suspicion.

Suspicious circumstances can come from how the will was prepared or from circumstances that call the testator's capacity into question. A beneficiary taking part in the will's preparation or signing is a typical example.

How medical evidence is treated

Medical evidence is important, but it is not a shortcut. Courts look at what it actually shows about the testator's abilities at the relevant time.

In practice this means a diagnosis in a chart is only a starting point. How much weight any piece of evidence carries depends on the facts of the situation, so it is worth confirming with a lawyer.

The threshold to challenge a will

A person interested in the estate has no absolute right to require a will to be proved in solemn form. The challenger must first point to some evidence which, if accepted, would call the will's validity into question. Concern or disagreement with the result is not enough on its own.

What to do next

• List when the will was signed and who was present, including the drafting lawyer and witnesses.
• Gather medical records, care notes and any capacity assessment from around the signing date, where you are entitled to them.
• Note specific observations, such as dates and conversations, rather than general impressions.
• Keep any earlier wills, since they can show whether the changes were out of character.
• Check time limits early, as estate claims can be time-limited.
• Talk to an Ontario estates lawyer about whether the evidence is likely to reach the threshold and what a challenge may involve.

Frequently asked questions