Age and Testamentary Capacity
“Testamentary capacity” is a term with a particular legal meaning: whether an individual has the necessary cognitive abilities to be capable of making a valid will. The classic statement of the test for testamentary capacity, which remains the most frequently applied version of the test, is found in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549:
It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties; that no insane delusion shall influence his will on disposing of his property, and bring about a disposal of it which would not have been made otherwise.
Ontario law presumes adults are capable. The Succession Law Reform Act (the “SLRA”) and the Substitute Decisions Act, 1992 (the “SDA”) codify this common law presumption. As a general rule, in Ontario a testator must be 18 years of age before he or she has the legal capacity to make a valid will. Section 8(1) of the SLRA, however, states:
8. (1) A will made by a person who is under the age of eighteen years is not valid unless at the time of making the will the person,
(a) is or has been married;
(b) is contemplating marriage and the will states that it is made in contemplation of marriage to a named person except that such a will is not valid unless and until the marriage to the named person takes place;
(c) is a member of a component of the Canadian Forces,
(i) that is referred to in the National Defence Act (Canada) as a regular force, or
(ii) while placed on active service under the National Defence Act (Canada); or
(d) is a sailor and at sea or in the course of a voyage.
It is a fundamental principle of elder law that a practitioner cannot assume capacity is an issue merely because of age. According to section 2 of the SDA, everyone aged 16 or older is presumed capable of making decisions about his or her personal care and everyone aged 18 or older is presumed capable of making decisions about his or her property. These presumptions do not expire or change for the elderly. A 100 year old is presumed to be capable, just the same as a 20 year old would be.
The most common cases in which testamentary capacity is an issue are where a testator executes a will late in life, while suffering from progressive dementia. The question in these cases is whether the mental capacity of the testator had deteriorated to an extent that deprived him or her of testamentary capacity.
In some cases, a person can be legally incapable of making a will at any time from birth to death. Congenital conditions, conditions that strike early in life, or catastrophic accidents occurring in childhood can deprive an individual of capacity before he or she attains the age of 18. In these cases, the property of these people will pass on intestacy, as guardians for property in Ontario cannot make a will on behalf of the person whose property they manage. Some jurisdictions, such as England and some Australian states and territories, allow for people who lack testamentary capacity to make valid wills. The only Canadian jurisdiction to allow such wills is New Brunswick, pursuant to the Infirm Persons Act.
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