Capacity is a fundamental consideration in many aspects of estate, trust, and attorneyship litigation.  The capacity of an individual to take a particular legal step, for example, to effect a distribution of property or to make a valid testamentary document, will often form the basis of a claim or court application.  However, as set out in today’s blog, capacity is specific as to task, time, and situation.  Context is a key factor in assessing capacity or lack thereof.

Whether an individual will be found to be capable of taking a particular legal step depends on the nature of the step being taken and when this step was taken.  By way of example, the threshold for the capacity required by a testator to execute a valid Last Will and Testament differs from, and is considerably higher than, the threshold of an individual seeking to grant a power of attorney for property or personal care.

The capacity to make a valid will requires an individual to have a clear understanding of the nature and extent of their assets, and to understand the effects of the dispositions being made including any claims that might arise as a result.  The capacity to grant a power of attorney for property, while similar to testamentary capacity, is a lower threshold.  An individual will be capable of granting a power of attorney for property provided that,

1. they have a general understanding of the nature and value of their property;
2. are aware of the obligations owed to any of their dependants; and
3. understand the nature of the rights being given to the attorney as well as the rights that they retain as the grantor of the power of attorney, for example, the right to revoke the power of attorney if capable.

While the capacity to grant a power of attorney for property only requires the grantor to have a general understanding of their property or their obligations, testamentary capacity requires specific knowledge and appreciation of potential legal ramifications.  Accordingly, an assessment of an individual’s capacity in each respect will impart different requirements.

Capacity is also specific as to time, particularly as an individual’s capacity may fluctuate depending on illness or circumstance.  While somewhat uncommon in practice, an individual who was previously assessed as incapable may subsequently regain the capacity to take a particular legal step.  Accordingly, when acting on behalf of an individual challenging the validity of a testamentary document or disposition of property, it is important to consider not only the grantor’s historical capacity or lack thereof, but also whether capacity may have been regained at some point prior to the disposition being challenged.

Thanks for reading.

Garrett Horrocks