Progressive Dementia and Testamentary Capacity

November 21, 2016 Ian Hull Capacity, Elder Law, Estate & Trust, Estate Planning, Executors and Trustees, General Interest, Wills Tags: , , , , , , 0 Comments

Testamentary capacity is most commonly an issue when a testator prepares a new will later in life, against a form of progressive dementia, whether it became apparent before or after the creation of the will.

The Main Question to be Considered

In cases regarding progressive dementia, the question is whether the mental deterioration has deprived the testator of his or her testamentary capacity. If the testator has been deprived of their capacity, it is likely (but by no means certain) that the will they signed will be invalid. Pursuant to the case of Johnson v Huchkewich (2010 ONSC 6002), a diagnosis of dementia is not tantamount to a lack of testamentary capacity.

Elderly man considers testamentary capacity
“In cases regarding progressive dementia, the question is whether the mental deterioration has deprived the testator of his or her testamentary capacity.”

Requirements for Capacity

As established in Banks v Goodfellow [(1870), [1861-73] All ER Rep 47], “the standard of capacity in cases of impaired mental power, is…the capacity on the part of the testator to comprehend the extent of the property to be disposed of, and the nature of the claims of those he is excluding.” In applying the test for testamentary capacity, it is important to ensure that the testator was capable of appreciating the terms of the will, but also the circumstances surrounding the making of the will. The testator must be able to recall and comprehend circumstances beyond a range of familiar topics. As defined in Leger v Poirier (1944 CarswellNB 11), the individual must be able to have a “disposing mind and memory”, which is able to “comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like.”

Therefore, in a case where an individual has progressive dementia and is attempting to make a testamentary document, the lawyer has an obligation to ascertain if the individual can appreciate the circumstances as a whole. The ability for the testator to rationally respond to questions is not enough to determine that the individual has full capacity.

Furthermore, it bears repeating that a testator who is incapable to manage his or her affairs due to progressive dementia, does not necessarily lack testamentary capacity. As established in the case of Cranford’s Will, Re, (1978 CarswellNfld 23), “in determining the testamentary capacity of an aged person it is necessary to be careful not to substitute suspicion for proof so as to render it impossible for old people to make wills…”

Thanks for reading,

Ian M. Hull

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