Undue influence and testamentary capacity are two of the most common grounds used to challenge the validity of a will. Often, these cases deal with testators who are older individuals suffering from declining mental health who may also be susceptible to undue influence. However, it is interesting to consider the less common scenario of the testator whose testamentary capacity is questioned due to cognitive conditions that were self-induced.

Health Canada estimates that approximately 4 to 5 million Canadians engage in high risk drinking and the Canadian Alcohol and Drug Use Survey further illustrates the continued prevalence of illicit drugs being used among Canadians. As the test for testamentary capacity involves being able to not only know and understand one’s assets but also to be free from delusions at the time the will is created, it is not difficult to imagine how the will of an individual  suffering from chronic addiction may be more prone to attack.

The Courts have genY3IUCK0FXEerally found that regardless of whether the mental capacity of the testator is impaired as a result of one’s own actions or due to forces beyond one’s control, the legal tests for testamentary capacity and undue influence remain the same. Although external circumstances can provide a better understanding as to what was happening when the document was created, intoxication on its own will not bar someone from making a will.

This approach is consistent with how testamentary capacity is treated in cases where the testator suffered from dementia. Just as it is possible for a person diagnosed with dementia to still meet the legal test to dispose of his or her assets, it is also possible for a person under the influence of drugs or alcohol to retain testamentary capacity. The key is that testamentary capacity must be assessed at the time that the document was created. If the legal test is met at this critical point, the will can be upheld.

However, in the event that the testator’s mental state was altered to the point where he or she no longer understood or appreciated their assets, who their dependant’s were, or were under any delusions, the will can be struck down. This is precisely what occurred in the case of Re: Bradbury Estate (1996 Carswell Alta 323) (“Bradbury”). In this case, the testator was drinking heavily with friends when he drafted a handwritten will leaving everything to one of the friends. The testator was murdered just a few hours later. An expert witness testified that the blood alcohol level of the testator indicated that at the time the will was created, he would have no longer possessed any critical judgment. Given the circumstances under which the will was executed, it was apparent that the testator lacked the testamentary capacity to prepare and execute a will and the will was declared invalid.

With respect to undue influence, cognitive impairment due to substance abuse may give rise to suspicious circumstances, as it did in Bradbury. This will have the effect of rebutting the presumption of testamentary capacity. However, circumstances can vary widely and as a result, creating a will while under the influence (even at the direction of another) will not necessarily lead to a presumption of undue influence.

Thank you for reading.

Suzana Popovic-Montag