Difference between revisions of "Making and Executing a Will (16:III)"

* 16 years of age;  

The will-maker must have the requisite testamentary capacity. No person of unsound mind, who lacks testamentary capacity, is capable of making a valid will. Testamentary capacity is defined through the common law, not statute. The basic test is found in ''Banks v Goodfellow'', (1870) LR 5 B 549 (QB) at para 569; for a recent application of this test, see ''Serbina v Frejd'', (2016) BCSC 33 (CanLII), at para 81.  

According to the Goodfellow test, to have testamentary capacity a will-maker must understand:

* The nature of the act of making a will and its effects;

* The extent of the property he or she is disposing; and

* Be able to comprehend and appreciate the claims to which he or she ought to give effect.

==== b) Presumption of Testementary Capacity ====

The law presumes that a will-maker has the requisite capacity, if a will was duly executed in accordance with the formal statutory requirements after being read over to a testator who appeared to understand it.   

However, a student or lawyer taking instructions from the will-maker should nevertheless always assess the will-maker's capacity. This decision should be based on the will-maker's instructions, not any assertion from the will-maker that they are capable. To this end, avoid asking will-maker direct questions about capacity, such as “are you capable?”

b) The will-maker obtained independent legal advice or had opportunity to do so;

d) The will-maker had knowledge and appreciation about what he/she was doing

Notwithstanding section 52 of WESA, an individual challenging a will on the basis on undue influence should have sufficient evidence to establish actual undue influence – in challenging the validity of a will, it may be insufficient to simply point to a relationship where there was a potential for the testator’s domination or dependence, without more. An allegation of undue influence is a serious allegation which should not be made lightly. See Ali v Walter Estate, 2018 BCSC 1032, Geffen v Goodman Estate, [1991] 2 SCR 353, Cowper-Smith v Morgan, 2016 BCCA 200.

Allegations of undue influence should not be readily brought. A failed allegation of undue influence may attract severe cost consequences against the accuser. When one alleges undue influence, they are accusing another of being a fraudster. A failed allegation of fraud more readily justifies an award of special costs against the accuser. Therefore, a party who fails to prove a case of undue influence runs the risk of having to pay the full legal costs of the defending party. As such, undue influence should be carefully considered and investigated prior to commencing a court action. See Mawdsley v Meshen, 2011 BCSC 923.  

The will drafter should ensure that the will represents the will-maker’s intentions and that he or she is not being coerced into making the will or disposition against his or her wishes. This is especially relevant where the aged or infirm are concerned.  

Suspicious circumstances surrounding the making of a will is not a stand-alone ground to challenge the validity of a will; however, if a challenger of a will can demonstrate that suspicious circumstances existed when the will was drafted, this may shift the burden on propounders of the will to prove that the testator had knowledge and approval of the contents of their will when it was made. In Vout v Hay, [1995] 2 SCR 876 at para 25 [Vout], the Court held that suspicious circumstance may be raised by:  

The Court in Vout held that where suspicious circumstances are proven, the burden of proof shifts to the propounder of the will to prove on balance of probabilities that the will-maker knew and approved of the will’s contents and had the necessary testamentary capacity. This problem is best avoided by ensuring the will is prepared by the will-maker or some independent party (e.g., a student or lawyer) and not by a beneficiary under the will or the spouse of a beneficiary.