TESTAMENTARY CAPACITY TO MAKE A WILL (June 26, 2020)

A will can only be valid if the person making it is aware of what they are signing. Over the course of Canadian legal history, a four-point test has emerged which assists the courts in assessing whether or not the testator was aware of the legal consequences of the document.

First, the testator needs to understand what it means to make a will. Usually the lawyer will assist in explaining the legal consequences of doing so. A will drafted and witnessed by a lawyer, will usually result in an assumption that the testator understood this first requirement.

Second, the testator needs to understand the extent of their property. This means that they should at least be broadly aware of what it is that they possess directly or indirectly. This covers a reasonable expectation of knowledge. It is possible that a testator died without being aware of an inheritance or a legal claim which would result in a greater net worth. In such a case, only the unknown windfall would be contemplated as falling outside of the will. More often than not however, if the will is clearly drafted, it will fall into the residue of the estate.

Third, they need to understand their relationship with those persons who might be expected to receive a portion of their estate. Effectively they need to be aware of who is and is not a dependent, and to be aware of all immediate members of their family.

Finally, the testator needs to understand what potential claims someone being left out of the will might have. This is by far the most controversial and crucial requirement. A spouse or a dependent person cannot be excluded from a will entirely. However, nothing says that adult children or other close relatives must be given a portion of the deceased’s estate. As can be imagined, this is a frequent area of dispute in will litigation. Adult children often challenge wills of parents who either gave them nothing, or less than other siblings.

Occasionally, if the testator leaves a close relative (usually a child) out of their will for no apparent reason, the court may consider that as proof that they did not have testamentary capacity. This in and of itself would not cause the will to be set aside but could potentially lead to a decision that the testator did not have the requisite capacity and have the will set aside.

The best way to avoid such an outcome is to either give the child a token gift of a small cash legacy or other item, or to specifically write in the will who is being omitted and why. This reassures the court that the relevant individual was considered in the disbursement of the estate.

If you need assistance with a will, do not hesitate to contact Arkadiusz J. Empel at Empel Law, by dialing 416-479-8531 (ext. 101).

 

Po Polsku (In Polish)

Arkadiusz J. Empel urodził się w Polsce, w Katowicach. Jest biegły w języku polskim i gotowy pomóc kliętkom w sprawach lokalnych oraz zagranicznych. Aby zasięgnąć pomoc oraz porade w języku polskim, prosze zadzwonić pod number 416.479.8531 (ext. 101).