The test for capacity from, Banks v Goodfellow a case from 1870, still applies to British Columbia estate law. Specifically, the testator must have been able to:
1. Understand the nature of making a will and its effects.
2. Appreciate the extent of the property that will be disposed by the will;
3. Have an adequate appreciation of who will benefit from the will, as well as the moral claims of other persons who should receive benefit from the will; and
4. Recognize the way assets are to be distributed under the will.
The precise wording of the test may vary but in all cases an assessment of the above factors will be done by a court as to whether a person has sufficient testamentary capacity to make a valid will.
In the case of Malcolm v Rounds, the British Columbia Court of Appeal stated that the “fundamental question is whether the testator was of sound and disposing mind and memory.”
The Banks case indicates two ways in which a person can lose testamentary capacity. One way is through “general unsoundness of mind.” An evaluation of how the will-maker meets or does not meet the factors listed above will suggest whether the testator has testamentary capacity. A second way in which a person can lose testamentary capacity is through, “specific delusions.”
According to Banks, a will can be found valid even if a person has delusions, so long as the delusions do not affect or pertain to the provisions of the will itself.
Despite the fact that there are four questions to be answered, it’s generally difficult to invalidate a will on the basis that the testator did not have the capacity to make a will.
That said, where there is a question of incapacity, the solicitor who prepared the will should be able to state that the four tests from Banks were considered and the testator passed. A medical opinion at the time of the execution of the will would be helpful, as well.
If you have any questions about the potential incapacity of a testator, please call Dyson Law now.