Testamentary Capacity in Ontario: The Test Courts Apply

If a parent or spouse has dementia and has signed a will, or may be about to, you may wonder whether the document would hold up. The question courts ask is called testamentary capacity. It is a specific legal test, not a general sense of whether someone is still sharp.

This article explains the test Ontario courts apply, how a condition like dementia fits into it, who has to prove what if a will is challenged, and what relatives can do. It describes how things generally work. Every situation turns on its own facts.

What testamentary capacity means

Testamentary capacity is sometimes called having a sound disposing mind. The Court of Appeal for Ontario has described what the person making the will must be able to do.

• Understand the nature and effect of a will.
• Recollect the nature and extent of their property.
• Understand the extent of what they are giving.
• Remember the people they might be expected to benefit and, where applicable, understand the claims of people they are excluding.

In plain words, the person needs to grasp what they are doing, what they own and who is affected. How the test applies to a particular person depends on the facts, so it is worth confirming with a lawyer.

Dementia, illness and substance use

A dementia diagnosis does not by itself answer the question. Where a person has a disorder that may affect capacity, it is considered when the capacity test is applied. That means the condition is looked at as part of applying the test and the abilities listed above.

The same goes for alcohol or drugs. It is an error to infer a lack of capacity from alcohol or drug use alone.

Capacity can also depend on the task. The legal test for being incapable of managing property is a different one. It asks whether a person can understand information relevant to decisions about their property, or appreciate the reasonably foreseeable consequences of a decision or lack of decision. Someone might meet one test and not the other, so a finding about a power of attorney does not automatically settle a question about a will.

Who has to prove what in a will challenge

When a will is challenged, the person putting it forward carries the legal burden on due execution, knowledge and approval, and testamentary capacity. Once due execution is proven, a presumption helps them. Evidence of suspicious circumstances shifts the legal burden back to them.

Undue influence is treated differently. Whoever alleges it has the burden of proving it.

A challenger also has a threshold to meet before a court will order proof of a will. Anyone who appears to have a financial interest in an estate may apply for directions, but must show some evidence which, if accepted, would call the will's validity into question. Worry or family disagreement alone is not likely to be enough.

How capacity is looked at in practice

Capacity assessors are trained health professionals, such as doctors, nurses, psychologists, social workers and occupational therapists. An assessment cannot be done if the person refuses, unless a court orders it. Usually the person who asked for the assessment pays the assessor. An assessment is one way to gather information while the person is alive, and whether it suits a particular situation is worth discussing with a lawyer.

After a death, how a court weighs capacity depends on the evidence available in that case, which is worth reviewing with a lawyer. The questions that come up are tied to the test and the burdens described above:

• Whether the person understood the nature and effect of a will, the extent of their property and what they were giving.
• Whether they remembered the people they might be expected to benefit and understood the claims of anyone they excluded.
• Whether a disorder that may affect capacity was present, which is considered when the test is applied.
• Whether there were suspicious circumstances, which can shift the legal burden back to the person putting forward the will.

A will that was not properly signed is a separate issue. The Superior Court of Justice may order that a document or writing that was not properly executed is as valid and fully effective as the deceased's will.

Time limits and what to do next

The basic limitation period is two years from the day the claim was discovered. Ontario courts have held a will challenge brought more than two years after the death, with no discoverability issue, to be statute-barred. How discoverability applies to will challenges depends on the facts, so do not assume you have more time.

If an estate trustee has not yet received a certificate of appointment, anyone who appears to have a financial interest in the estate may file a notice of objection (Form 75.1) at any time before it is issued. It must state the nature of their interest and of the objection.

• Write down dates, names and what you saw, while memories are fresh.
• Ask which medical and care providers were involved and what records exist.
• Find out whether the will has been used to apply for a certificate yet.
• Note the date of death and diarize two years from it.
• Speak to a lawyer before taking any step that could escalate a family dispute.

Frequently asked questions