Testamentary Capacity – What Does it Mean and How to Assess?


Testamentary capacity is a term with a particular legal meaning, which is whether an individual has the necessary cognitive abilities to be capable to make a valid will.  Learn more about lawyers acting as Estate Trustees and the use of Henson Trusts.


Testamentary Capacity


There is plenty of judicial guidance on what constitutes testamentary capacity.  The test for testamentary capacity is a high one.  It is not sufficient for the testator to be merely capable of answering familiar and usual questions.  The testator must have a “disposing memory” so as to be able to dispose of his/her property with understanding and reason.  The requirements for a “disposing mind” include:


  • The testator must understand the nature and effect of the will;
  • The testator must recollect the nature and extent of his/her property;
  • The testator must understand the extent of what he/she is giving under the will;
  • The testator must remember the persons that he/she might be expected to benefit under the will; and
  • The testator, where applicable, must understand the nature of the claims that may be made by a person he/she is excluding from the will.[1]


Testamentary capacity is a question of fact.  Testamentary capacity is presumed for a duly-executed (formalities are met) will.  Where there is evidence that the will was made in “suspicious circumstances,” the presumption is spent and the party propounding the will must prove testamentary capacity on the normal civil standard.[2]


Suspicious circumstances are any circumstances surrounding the execution or preparation of the will which individually or cumulatively cast doubt on the testator’s capacity to make a will or his/her knowledge and approval of the will’s contents.  Serious illness, especially where the testator is elderly and the illness is capable of affecting his/her mental state, demand greater care and caution from the drafting solicitor.


Undue Influence


Undue influence is related to capacity.  Undue influence is not presumed.  There must be actual undue influence proven on the normal civil standard by the person alleging it.[3]  Undue influence is something akin to coercion and Is not merely persuasion or the ability to persuade.


Lawyer’s Due Diligence and Mental Status Assessment


If there is any doubt with respect to testamentary capacity, the best practice is to obtain a “mental status assessment” from a certified capacity assessor under the Substitute Decisions Act.[4] Lawyers who fail to obtain mental status assessments (or who fail to test for testamentary capacity) in circumstances which warrant them have been censured by courts or have been found to be professionally negligent.


Other common errors subject to criticism from courts or which have resulted in professional negligence include:


  • The failure to interview the client in sufficient depth;
  • The failure to property record or maintain notes;
  • The failure to ascertain the existence of suspicious circumstances or react properly to the existence of suspicious circumstances;
  • The failure to provide proper interview conditions (eg, the failure to exclude an interested party from the interview); and
  • The existence of an improper relationship between the solicitor and the client (eg, preparing a will for a relative).

[1] Palahnuk v Palahnuk Estate, 2006 CanLII 44262 (ON SC) at para 64.

[2] Vout v Hay, [1995] 2 SCR 876.

[3] Brandon v Brandon, 2007, OJ No. 2986, SCJ.

[4] 1992, SO 1992, c 30.