Canada: Becker v. Becker: Testamentary Capacity

In Becker v. Becker, the Supreme Court of British Columbia considered whether a testator who had been hospitalized with an inoperable brain tumour had the requisite testamentary capacity to execute new Wills and whether suspicious circumstances were present that rebutted any presumption of capacity.

The test for testamentary capacity, set out in the leading English case Banks v. Goodfellow (1870), provides that the testator must (i) understand the nature and effect of the Will; (ii) understand the extent of his property; (iii) understand and appreciate the claims of those around him to which he ought to give effect; and (iv) be of sound mind.

Suspicious circumstances can rebut the presumption of capacity, as set out in the Supreme Court of Canada case Vout v. Hay. Testamentary capacity must then be proved on a balance of probabilities.

Background

Ann Andrews died on February 10, 2012 at the age of 73 after having been hospitalized with an inoperable brain tumour. While in hospital, she made a new Will and then replaced it with another Will five days later (the "new Wills").

Ms. Andrews' godchildren, who live in England and Spain (the "Godchildren"), challenged the validity of the new Wills. The grandchildren of Hendrik Becker ("Hendrik"), Ms. Andrews' common-law spouse of 27 years (the "Becker Grandchildren"), argued Ms. Andrews' new Wills are valid.

Ms. Andrews' new Wills updated the appointment of her executor from a long-time friend to Hendrik and Hendrik's son as alternate executor and changed the division of the residue of her estate from the Godchildren alone to both the Godchildren and the Becker Grandchildren.

Preparation of the New Wills

On January 10, 2012, a lawyer attended upon Ms. Andrews in the hospital to receive instructions to draw up a new Will. The lawyer brought a copy of Ms. Andrews' 2009 Will to reference during the meeting and spoke to Ms. Andrews for roughly two hours. Hendrik was present for about two-thirds of the time. The evidence was that Ms. Andrews was very emotional and was inconsistent with her memories and sometimes forgetful and confused. It was not clear how much Ms. Andrews understood of her property and she had to be prompted by Hendrik and the lawyer rather than responding to open-ended questions. Ms. Andrews had difficulty remembering the names of the Godchildren, but was able to remember the names of the Becker Grandchildren.

Three days later, the lawyer and two legal assistants from her office attended at the hospital for execution of the Will. The lawyer's evidence was that Ms. Andrews appeared "brighter and more cognitively aware" and less emotional. The lawyer said that Ms. Andrews was clear on the terms of the Will and approved them. There was no indication that Ms. Andrews did not understand what she was doing at the time.

Hendrik contacted the lawyer on January 16, 2012 and advised that his grandchildren were to be added as residuary beneficiaries under Ms. Andrews' Will. The lawyer was aware that she was required to receive these instructions directly from Ms. Andrews; however, she considered it reasonable that Ms. Andrews would want the Becker Grandchildren included in her Will.

On January 17, 2012, the lawyer met with Ms. Andrews to confirm her instructions. Ms. Andrews told the lawyer that she had seen the Becker Grandchildren grow up and would feel uncomfortable if they were left out. The second new Will was drawn up by the lawyer incorporating this change and was signed the next day.

The Court's Analysis

The Court relied on Vout v. Hay, confirming that there is a presumption of capacity where a Will has been duly executed, with the requisite formalities, after having been read by or to a testator who appeared to understand it. This presumption may be rebutted by evidence of suspicious circumstances, in which case testamentary capacity must be proved on the balance of probabilities.

The suspicious circumstances alleged by the Godchildren included:

  • A change in a long-standing estate plan to the benefit of Hendrik and his family;
  • The involvement of Hendrik in retaining and providing instructions to the lawyer; and
  • Ms. Andrews' "vulnerability" arising from the terminal diagnosis she received.

The Court determined that the new Wills did not include significant changes signalling suspicious circumstances, nor was it suspicious for Ms. Andrews to change her Will after receiving a terminal diagnosis.

The Court agreed that Ms. Andrews' apparent confusion and faulty memory on January 10, 2012, coupled with her ongoing physical deterioration, do amount to a suspicious circumstance rebutting the presumption of capacity. However, the Court accepted the lawyer's evidence, supported by that of Ms. Andrews' physician, that Ms. Andrews was brighter, clearer, less emotional and could converse easily during the lawyer's subsequent three attendances.

The Court noted that the emotional state of a person who has recently been told that death is imminent should not be confused with the question of mental capacity.

Hendrik's involvement with contacting the lawyer and providing instructions was concerning, but the Court pointed out that he was not present when the January 13, 2012 Will was executed, when Ms. Andrews subsequently confirmed her wishes to make further changes to include the Becker Grandchildren or when the January 18, 2012 Will was executed.

Although it was likely that the change to Ms. Andrews' Will to include the Becker Grandchildren was suggested or prompted by Hendrik, the lawyer was aware of this issue and determined it to be a change that Ms. Andrews wanted to make. The lawyer made the determination in Hendrik's absence. "Nothing in the case law prevents suggestions or persuasion by a spouse, provided that there is no coercion and the testator remains free to make his or her own decision" (at para. 70).

Conclusions

The lawyer met with Ms. Andrews on four separate occasions over the span of eight days and judged her capacity each time. The Court concluded that on the balance of probabilities, Ms. Andrews had the requisite testamentary capacity to execute both new Wills and no evidence of undue influence was found.

The test set out in Banks for testamentary capacity does not require perfection, but simply the ability to turn one's mind to those elements in a general way.

If you require advice or assistance with respect to any estate matters, the team at Miller Thomson would be pleased to assist. Although sometimes inevitable, the best way to avoid estate litigation is to have proper estate documents drawn up and signed. Do not wait until a Will becomes urgent; planning for the future while you are still in good health is the best practice.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions