- In British Columbia a person must be at least 16 and mentally capable to make a valid will.
- The statute requires mental capability but leaves the detailed test to case law.
- Capacity is a separate question from whether the will was signed and witnessed correctly.
Perhaps a parent changed their will late in life, or you were surprised by who received what. You may be wondering whether your loved one truly understood what they were signing. That question has a legal name: testamentary capacity.
This article explains in plain words what the term means in British Columbia, how it differs from other will problems, and how doubts are usually raised. It is general information, not advice on your situation.
This article covers the law of British Columbia.
What testamentary capacity means
Testamentary capacity is the mental ability a person needs in order to make a valid will. Under the Wills, Estates and Succession Act (WESA), a person who is 16 or older and mentally capable of doing so may make a will.
Age and capacity are two separate requirements. A will made by someone under 16 is not valid, and someone who is 16 or older still needs to be mentally capable.
WESA uses the words "mentally capable" but does not itself define the test. The test comes from case law, which BC courts apply together with section 36 of the Act.
Capacity is not the same as proper signing
People often mix up capacity with the formal rules for signing. A will must be in writing, signed at its end by the will-maker (or the signature acknowledged) in front of two or more witnesses present at the same time, and signed by those witnesses in the will-maker's presence. Signing witnesses must be 19 or older.
These are different questions. A will can meet every signing rule and still be challenged for lack of capacity. The reverse is also true: the court can sometimes order a document to be fully effective as a will even though it does not follow the formal rules, if it represents the deceased's testamentary intentions. That power is a cure for formal defects, not for lack of capacity.
Other reasons a will is challenged
Doubts about understanding are only one type of dispute. The table shows how related concerns differ.
| Concern | What it asks | Where it comes from |
|---|---|---|
| Capacity | Was the will-maker mentally capable? | WESA s. 36 and case law |
| Undue influence | Was the will the result of pressure from someone in a position of dependence or domination? | WESA s. 52 |
| Signing | Was the will properly signed and witnessed? | WESA s. 37(1) |
| Drafting error | Does the will fail to carry out the will-maker's intentions through a slip or misunderstood instructions? | WESA s. 59(1) |
How doubts about capacity are handled
Probate is the process that checks a will was made without fraud or undue influence; a will that passes those checks is described as valid. A person who receives notice of a probate application can oppose a grant by filing a notice of dispute under Rule 25-10 of the Supreme Court Civil Rules.
A formal challenge to validity is made by applying to the Supreme Court for an order proving the will in solemn form under Rule 25-15. This is where capacity and undue influence questions are decided.
Where there are suspicious circumstances relating to mental capacity, the person propounding the will takes back the legal burden of establishing capacity. The standard of proof is still the balance of probabilities, but the evidence is scrutinized in line with the seriousness of the suspicion.
What to do next
Timing matters in estate disputes, so do not wait long. One practical point is that a personal representative must not distribute the estate within 210 days after the grant, except by court order. Which deadline applies to a validity challenge depends on the facts, so ask a lawyer to confirm it.
- Find out whether a probate application has been made, and whether you received notice.
- Gather the will, any earlier wills, and the dates of each.
- Write down what you observed about your loved one's health and understanding, with dates.
- Collect names of witnesses, doctors and others who saw the will-maker around the time of signing.
- Speak with a lawyer before filing anything or confronting the executor.
Frequently asked questions
Does being elderly or having dementia automatically mean someone lacked capacity?
Nothing in the statute treats age alone as a reason to find a will invalid. WESA asks whether the person was mentally capable. How a diagnosis affects that question depends on the facts, and a lawyer can assess it.
How old must someone be to make a will in BC?
The person must be 16 or older and mentally capable. A will made by someone under 16 is not valid.
Who has to prove the will-maker had capacity?
Generally capacity is presumed, and suspicious circumstances can rebut that presumption. If the suspicious circumstances relate to mental capacity, the person propounding the will must establish capacity.
Can I stop probate while I decide what to do?
A person who receives notice of a probate application may file a notice of dispute under Rule 25-10. Filing one prevents a grant from being issued before the person can apply for an order requiring security. A lawyer can explain the effect in your case.
Sources
- Wills, Estates and Succession Act, SBC 2009, c. 13, s. 36(1) — bclaws.gov.bc.ca
- Vout v. Hay, 1995 CanLII 105 (SCC) — canlii.org
- BC Government: After a Death – Deal with wills and estates — www2.gov.bc.ca
- Supreme Court Civil Rules, B.C. Reg. 168/2009, Form P1 and Rule 25-10 — bclaws.gov.bc.ca
- BC Government: Explanation of the New Supreme Court Civil Rules (Probate), Part 25 — www2.gov.bc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a wills & estates question
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