Tag: Testamentary Capacity

02 Feb

Testamentary Capacity: Are You in the Mood?

Hull & Hull LLP Beneficiary Designations, Ethical Issues Tags: , , , 0 Comments

A recent case out of England has led to an interesting twist on testamentary capacity. In Sharp v. Adam [2006] EWCA 449, the English Court of Appeal upheld the trial judge’s ruling that the unexplained exclusion of the testator’s daughters from his Will, together with evidence of brain deterioration (due to Multiple Sclerosis), was enough to set aside the Will on the basis of incapacity. This was despite evidence that the testator was able to communicate effectively by blinking and using a spelling board, and his experienced solicitor and family doctor were present when the Will was signed and had concluded that the testator had the requisite capacity.

In essence, the case turned on the lack of an explanation for why the testator had excluded his daughters. There was no evidence of undue influence by the named beneficiaries or of any problems with the daughters. While the Court of Appeal accepted that the testator’s ‘cognitive ability’ was satisfactory to make the Will, his ‘mood’ was not. In excluding his daughters inexplicably from his Will, the Court concluded that the testator’s ‘mood’ was so affected by his MS that this deprived him of the requisite testamentary capacity. This arguably raises the threshold for establishing testamentary capacity. A challenger to a Will may now be able to convince a court to set a Will aside on the basis that the testator’s mood was impaired, even if his/her cognitive abilities remained intact.

Have a great day!

Bianca La Neve


26 Jan

A Cautionary Tale

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Lack of testamentary capacity and undue influence are usually difficult to prove. However, too many clients are willing to advance such claims on the basis of a weak evidentiary record. A recent decision from the Alberta Court of Appeal, Nicholson v. Kurtz sounds a note of caution.
Two sisters appealed a trial decision setting aside their father’s Will on the basis of lack of testamentary capacity and undue influence.

The father’s previous Will had divided the residue of his estate equally between his three children. However, in 1998, the father, who was 92 at the time, retained a lawyer to prepare a new Will (“1998 Will”). The lawyer asked his client a series of questions. Some of the responses were inaccurate, but the lawyer ultimately concluded his client had capacity. The 1998 Will specifically stated that the father wanted to exclude his son “because I believe if he receives any money he will use it for liquor”. The son had been convicted of drinking and driving offences in 1987 and 1992.

The trial judge concluded that the father lacked capacity and was unduly influenced by his two daughters and set aside the 1998 Will. The Alberta Court of Appeal disagreed and reversed the trial judge’s decision. The 1998 Will was declared valid.

According to the Appeal Court, there was no medical evidence suggesting the testator lacked capacity and there was no direct evidence that the daughters influenced their father’s decision to exclude their brother. Moreover, the father’s lawyer specifically questioned his client to gauge his capacity during their first two meetings. Their third meeting lasted two and a half hours and the lawyer had no reason to conclude that his client’s capacity had changed. After reading the 1998 Will to his client, the lawyer was satisfied that it expressed his client’s wishes.

According to the Appeal Court, the finding of undue influence could also not be sustained on the record. The father’s reason for excluding his son was expressly stated in the 1998 Will. There was also clear evidence that the father’s wish to exclude his son arose several months before the 1998 Will was signed. The Appeal Court held that the trial judge simply failed to give any weight to this evidence. The trial judge also failed to give weight to the lawyer’s evidence that he discussed the possibility of the daughters’ influence with his client who expressly denied such influence. Mise en garde!!

Justin de Vries


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