Testamentary Capacity Flashcards
Age requirement to make a will in NB
Will made by person under 19 not valid unless exception applies
What are the exceptions to the age requirement?
- Person is or has been married
- Person is a member of the Canadian Forces
- Marinor or seaman (navy)
Why is marriage an exception to age?
Because of intestacy, if you have a spouse it all goes to them and if you want to avoid this need a will.
What is one very basic requirement for probate?
Knowledge and approval of will and its contents (know its a will and approve of what it does)
Presumption of knowledge if they…
Had it read to them, appeared to understand it and then properly executed it (complied with formalities)
When executor makes an application for probate, they normally must establish a number of matters, these include proof that:
- The testator satisfied the statutory age requirement to make a will
- The testator knew and understood the contents
- The testator had testamentary capacity
- The will was executed in accordance w/ the statutory requirements/formalities of a will and was not revoked
- The will was not affected by mistake
- No undue influence or fraud
Calderaro v Meyer
Will wasn’t probated b/c Court found T had no capacity (couldn’t communicate and didn’t squeeze mothers hand), and couldn’t have approved of the contents of the will.
Russel v Fraser
If the testator failed to understand the entire will, it cannot be probated. However, if the testator didn’t understand one clause, or made a mistake about only part, the rest of the will may be probated.
Onus for knowledge?
- On person trying to disprove presumption of knowledge.
- If no evidence person had will read to them onus on person trying to probate, no presumption
Banks v Goodfellow
Set out 4 part test for testamentary capacity:
1) Understand nature and effect of will
2) Understand nature and extent of property they are disposing of
3) Be aware of any claims to which he ought to give effect (moral obligations
4) Have no disorder of the mind that shall poison the affections, pervert his sense of right, or pervert his natural faculties. No insane delusions shall influence his will.
When is insane delusions considered influencing a will?
Disposal of property which had they been of sound mind would not have been made
Test for Capacity which is Diminished through Age, Disease, illness
The mental power of the testator may be reduced below the ordinary standard, but if there is sufficient intelligence to understand the first test, capacity remains.
General lack of capacity/ insanity
mental disability, or disability as a result of age or disease.
Insane delusions
Could be temporary boughs of general insanity, sometimes you have capacity sometimes you don’t
Intoxication
Self induced testamentary incapacity
What if someone is suffering from insane delusions but makes a rational will
They will allow it to be valid, rational will preferable over intestacy
Leger v Poirier
You must be able to have a fully informed and engaged conversation about the will, more than just yes or no. This is the bare minimum of the test of testamentary capacity. A disposing mind and memory is whether one can comprehend, of their own initiative and volition, the essential elements of will-making, property, object, just claims to consideration, revocation of existing dispositions, and the like.
Re Davis
Facts: lady had health problems and underwent a complete personality change ran off with man in a shack
Ratio:
- Even if doctor/lawyer says capable, ample evidence from lay witnesses can still prove incapable
- A court will look to previous wills to if the testator has radically changed their position, it may show that something is wrong.
Vout v Hay
Facts: H (81) had a relationship with V (29)
Ratio:
-When a lawyer fails to consider suspicious circumstances surrounding the creation of a will they can be held liable, even if a will is found by the courts to be valid
UPDATED TEST FROM BANKS v GOODFELLOW
Testamentary Capacity– Sound mind, memory and understanding when the will was made, in the sense that s/he at the time the will was made:
o Understands the nature and effect of a will
o Recollects the nature and extent of their property
o Understands the extent of what s/he is giving away, in regards to property
o Remembers the people who might be expected to benefit under their will
o Understands the nature of the claims that may be made by people that s/he is excluding under the will
What should lawyer do if they have doubts about capacity?
Take testator through all steps and if any doubts order assessment
General insanity vs insane delusions
General insanity=determinative of incapacity
Insane delusions= not determinative
How to defeat a will with insane delusion?
Show a link between the delusions and the will– will is a product of insane delusions
Insane Delusions
belief in a state of facts which no rational person would believe
Insane delusions not automatically incapacity, have to conclude:
A) Testator experiencing insane delusions
B) Delusions affected testators capacity to make a will
O’Neil v Royal Trust
Facts: changed will but then felt guilty not following dead husbands wishes so changed it back. Year later suffered delusions.
Ratio: Thus, the medical evidence showed no sign of lack of testamentary capacity in relation to her delusions. Delusions not the reason she changed it.
Royal Trust Co v Saunders
Courts are no longer so quick to decide that a testator lacked capacity if they left a child or spouse out from the will, even if they have mental illness issues. He gave reasons for taking them out, doesn’t matter how petty.
Sharp v Adams
Facts: had doctors, lawyers, and other witnesses saying he was capable.
Ratio:
- found incapable because no reason the daughters would be completely disinherited they had a good relationship.
- Demonstrates extreme the moral issue can go.
- If someone has possible mental issue and no reason to leave people off they will likely be found not to have capacity
If someone has mental issue and disinherits people without reason vs if they don’t have issue
if they have a mental health issue even if they have been found by others to have capacity likely will find temporary insanity. IF someone doesn’t have mental issues and does this without reason likely will be found capable.
Pike v Stone
Client had schizophrenia, can make a valid will when you have it just have people make sure you understand everything from the test.
Death by suicide
Does not automatically make a finding of incapacity
Suicide notes
Most common form of holographic will (in handwriting and signed)
Re Pommerehnke
Facts: woman killed herself in fire, found she was drunk, left a handwritten note on gate well away from house stating who she wanted stuff to go to
Ratio: found she had capacity, no evidence she wrote while drunk (neat handwriting), note away from house, relationship with nieces
Vout v Hay
- Onus
- Once propounder (person trying to prove validity) shows the will was executed with formalities, read to testator, and understood it is presumed they have capacity and burden shifts.
- In suspicious circumstances presumption spent and propounder has burden of proving knowledge, approval, and testamentary capacity
- Balance of probabilities
Barry v Butlin
If circumstances exist that arouse the suspicion of the court then such a suspicion will have to be dispelled before it can be probated
If something is not right it triggers
- If you are suspicious you have to raise a trial and prove it in solemn form.
- Before you get to solemn form trial have to meet suspicious circumstances case
Clark v Nash
- Gave test for proving suspicious circumstances exist
- Not just a bit off, rather circumstances which create a specific and focused suspicion that the testator may not have known and approved of the contents of the will or that the testator lacked testamentary capacity
Onus if court believes there are suspicious circumstances
- Testamentary capacity= onus with person wanting to prove will
- Knowledge and approval= person seeking to prove
- Undue influence/fraud= those alleging these
Why do onuses matter?
In absence of conclusive evidence the person on whom the onus rests loses
When is testamentary capacity required?
If testator had capacity when signed all that needs to be proven is that testator knew it was a will for which they gave previous instructions
Re Bradshaw Estate
If indicators they don’t have capacity have to make sure enough evidence to prove understanding
