Mental Capacity for Adult Guardianship (15:II)

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The fact that a person has a mental illness, disability or impairment is not conclusive of their mental capabilities. Capacity to make a legally binding decision depends upon the type of decision at hand. The legal capacity standards for carrying out transactions, entering into relationships, or managing a person’s affairs are set out both in common law and statute.

The various common law capacity standards are discussed in great length in the upcoming BC Law Institute’s Report on the Common Law Tests of Incapacity (, which covers capacity to do the following:

  • Make a will
  • Make an inter vivos gift
  • Make a beneficiary designation
  • Nominate a committee
  • Enter into a contract
  • Retain legal counsel
  • Marry
  • Form the intention to live separate and apart from a spouse
  • Enter into an unmarried spousal relationship

  The planning statutes set out the specific test for capacity that is required for an adult to sign a valid planning document, and it is important to note that the tests differ depending on the nature of the decision being made. Thus, just because someone lacks capacity in one regard, does not mean that they necessarily lack capacity in another context.

A. Capacity to make a will

The capacity to make a will is commonly referred to as ‘testamentary capacity’, and the testator of the will must have this capacity at the time that they make the will. There are two main ways in which a testator may be found to lack testamentary capacity. First, if a testator is found to have a ‘general unsoundness of mind’. This assessment takes into account factors including the testator’s ability to appreciate: the nature of a will and the consequences of making one, the property that might be affected by a will, the people who are to receive property under the will, and the way that property is to be distributed under the will. The second way that a testator may be found to lack testamentary capacity is if they are under ‘specific delusions’. Generally, under this assessment, the law will only take those delusions that have a direct bearing on the will itself into account.

Because creating a will involves many complex cognitive steps and evaluations (including not only assessing one’s own interests and positions, but the interests and positions of others in relation to one’s property) the test for testamentary capacity is generally viewed as being particularly stringent compared to the tests for capacity in other types of decision-making—a comparatively high level of capacity is needed. However, the stringency of the test may be able to be adapted depending on how complicated a particular will is, or if there are particularly compelling policy reasons to adjust the test.

Additionally, due to the unique nature of a will, there are other important issues that may arise surrounding the issue of testamentary capacity. For instance: wills must follow formal requirements, suspicious circumstances may be able to have a bearing on the presumption of capacity, and undue influence may have a bearing on the validity of a will.

If a person is found to lack testamentary capacity, British Columbia legislation mandates that there is no way for this person to create a valid will. However, there still may be options available to them so that they are still able to distribute their property in a way that is agreeable to them.

A. Arrest

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on June 21, 2019.
© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.

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