One of the grounds for challenging the validity of a Will is
that the person who made the Will did not have the mental capacity
to understand his actions. With an aging population and
higher rates of medical conditions, such as Dementia and
Alzheimer's Disease, which may affect a person's memory and
other mental functions, questions about testamentary capacity arise
In a recent case Bull Estate v. Bull, the Supreme Court
of BC provided further guidance on the issue of testamentary
capacity. In Bull Estate, the deceased made a Will in 2010
leaving more assets to her daughter than her son. The deceased died
in September 2012. Her son challenged the Will on the basis that,
amongst other things, the deceased's progressive dementia made
her incapable of making the Will.
The Court found that the deceased had the requisite testamentary
capacity when she executed the Will in 2010, and the Court further
stated that sufficient mental capacity to make a Will may exist
despite the presence of cognitive deterioration, and a will-maker
may have sufficient mental capacity even if his/her ability to
manage other aspects of his/her affairs is impaired.
In reaching its conclusion, the Court summarized the following
non-exhaustive principles that have been established by courts over
the test for testamentary capacity is not overly onerous;
simply having an imperfect or impaired memory does not in of
itself absent testamentary capacity unless it is so great as to
leave no disposing memory;
the will-maker needs to have an appreciation of the claims of
the persons who are natural objects of his/her estate and the
extent of his/her property of which he/she is disposing;
because testamentary capacity is a legal question and not a
medical question, a medical opinion, although valuable and
relevant, is not determinative of testamentary capacity;
a will-maker cannot be found not to have testamentary capacity
simply because he/she chose to leave his/her estate in a manner
that some might think unkind.
While each case of testamentary capacity turns on its own unique
facts and evidence presented, the Bull Estate decision
sets a high bar for a person challenging a Will to establish that
the will-maker did not have the requisite mental capacity to make
the Will, even if the will-maker suffered from medical conditions
affecting his or her mental functions when the Will was made.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
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