Statutory Wills, Disability, and Equality

October 4, 2013 Hull & Hull LLP Estate Planning Tags: 0 Comments

Most often, when testamentary capacity issues arise in connection with the validity of a will, they arise in the context of an older person with a progressive form of dementia such as Alzheimer’s disease. 

Congenital conditions or conditions that strike early in life can sometimes render an individual legally incapable of making a will at any time from birth to death. Under the Substitute Decisions Act, 1992, attorneys for property and guardians for property in Ontario cannot make a will on behalf of the person whose property they are managing. As a result, there is a class of people who, because of disability, will never be able to make valid Ontario wills in any way, shape, or form throughout their lifetimes. On death, the property of people in this position will flow according to the rules of intestate succession.

Some jurisdictions have developed processes to allow people who lack testamentary capacity to make valid wills. In England, the Mental Capacity Act 2005 allows statutory wills for incapable persons. Under previous legislation, the guiding principle applied by the courts in determining the content of a statutory will was a “substituted judgment” approach, whereby the court would put itself into the position of the testator and decide what terms he or she, subjectively, in a moment of lucidity, would want. Since the coming into force of the Mental Capacity Act 2005, the courts have replaced this with a “best interests” approach, wherein the advantages and disadvantages of the proposed statutory will are examined objectively, although the wishes of the incapable person may be taken into account.

A number of Australian states and territories have adopted statutory will procedures as well, although they differ from the English process.

Among the Canadian provinces, New Brunswick is the only one with a statutory will procedure under its Infirm Persons Act. The Alberta Law Reform Institute considered the implementation of statutory wills, but it was never enacted. A recent report of the British Columbia Law Institute supported the adoption of statutory wills in British Columbia as well, but no such legislation has yet been implemented.

Statutory wills have been touted as a way to bridge a gap by allowing people who are incapable to avoid intestacies, thereby enhancing their right to equality. They have also been criticized as an infringement on the same equality rights by allowing government intervention into the property and testamentary freedom of incapable persons that would not be allowed if they were legally capable of making wills. 

At present, Ontario has no procedure for people lacking testamentary capacity to make wills. It will be interesting to see whether British Columbia follows through on the proposal of the BC Law Institute, and whether any other Canadian jurisdictions will follow suit in the future.

Josh Eisen

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