About 1% of Canadian seniors aged 65 to 69 suffer from some level of dementia. However, this figure increases to 25% for Canadian seniors over the age of 85. With the number of senior citizens set to increase in Canada by 68% over the next 20 years, might we expect to see an increase in applications challenging the capacity of testator?

Probably not.

It may be tempting to latch on to a dementia diagnosis or reference to dementia-related symptoms as the basis for a will challenge. However, the mere existence of symptoms or a diagnosis does not necessarily equate to lack of testamentary capacity and may not, in and of itself, meet the minimum threshold required to continue a will challenge. 

The test of capacity requires that a testator have a sound disposing mind, able to understand and appreciate the effect of the will on one’s assets and liabilities within the context of one’s legal and moral obligations. Additionally, the court will decide each matter on a case-by-case basis considering the testator’s age, the progression of any impairment, as well as the context surrounding the drafting of the will and whether there is a radical departure from a prior will. The basis of the challenge has to be sufficiently apparent to meet the minimum threshold required to warrant further analysis by the court 

Ultimately, whether a will challenge has any merit is determined by an assessment of the evidence before the Court.  Challenging a testator’s capacity requires more than a mere accusation.