Making a Will is one of the most important legal decisions you will ever make. It allows you to decide who will receive your assets, who will administer your estate, and how your final wishes will be carried out.
Unfortunately, even a properly drafted Will can be challenged after your death.
One of the most common grounds for contesting a will in Ontario is the allegation that the person making the will lacked testamentary capacity. In many cases, claims of diminished capacity are accompanied by allegations of undue influence, particularly where significant changes have been made to a previous Will or where an elderly person has become dependent on others.
Although no one can completely prevent a Will challenge, there are practical steps you can take to strengthen your estate plan and provide your Estate Trustee (executor) with the evidence needed to defend your wishes.
What Is Testamentary Capacity?
Testamentary capacity is the legal ability to make a valid Will. It is not enough simply to sign a document. At the time instructions are given and again when the will is executed, the testator must understand what they are doing and appreciate the consequences of their decisions.
Generally, a person should be able to:
- understand that they are making a Will and that it will determine how their property is distributed after death;
- have a reasonable understanding of the nature and approximate value of their assets;
- recognize the people who might reasonably expect to benefit from their estate, such as a spouse, children, or dependants;
- understand how the Will distributes their property; and
- make decisions that are not affected by mental illness, delusions, or another condition that impairs judgment relating to the distribution of the estate.
The legal test for testamentary capacity has existed for well over a century, but challenges based on capacity continue to be one of the most common forms of estate litigation in Ontario. The case of Banks v. Goodfellow (1870) deals with this issue.
1. Have Your Will Prepared by an Experienced Ontario Estates Lawyer
The first and perhaps most important step is to retain an experienced lawyer to prepare your Will.
A lawyer does much more than reduce your instructions to writing. Throughout your meetings, the lawyer observes your memory, reasoning, communication, and understanding of the decisions you are making. Those observations are often recorded in detailed file notes that can become valuable evidence if your Will is challenged years later.
An experienced estates lawyer will also recognize potential warning signs of diminished capacity or undue influence and take additional steps where appropriate to ensure that your wishes are properly documented.
A professionally prepared Will is generally far more difficult to challenge than a homemade or online Will.
2. Obtain a Medical Capacity Assessment if There Is Any Doubt
If you have experienced memory problems, have been diagnosed with cognitive impairment, or anticipate that someone may later question your capacity, consider obtaining a medical assessment when your will is being prepared.
Depending on your circumstances, this may involve:
- an assessment by your family physician;
- cognitive screening recorded in your medical records;
- an evaluation by a geriatrician; or
- an assessment by a geriatric psychiatrist.
Medical evidence created at the time the will is prepared is usually far more persuasive than opinions obtained years later during litigation.
It is important to remember that a diagnosis of mild cognitive impairment or even early-stage dementia does not automatically prevent someone from making a valid will. The question is whether the individual possessed testamentary capacity when instructions were given and when the Will was signed.
3. Prepare Written Instructions Before Meeting Your Lawyer
Another excellent way to demonstrate capacity is to prepare your own written instructions before meeting with your lawyer.
Your notes should identify:
- your principal assets;
- the people you wish to benefit;
- how you want your estate distributed;
- any charitable gifts; and
- the reasons for significant changes from previous Wills.
Preparing your instructions in your own words demonstrates that your estate plan was carefully considered and not created at the direction of someone else.
If you intend to reduce or eliminate an inheritance for someone who might reasonably expect to benefit from your estate, discuss those reasons with your lawyer. The lawyer may recommend preparing a confidential memorandum or statutory declaration explaining your decision. Although this document does not form part of the Will, it may become valuable evidence if litigation later arises.
4. Meet with Your Lawyer Alone
Many will challenges involve allegations of undue influence in addition to claims of diminished mental capacity.
Undue influence occurs when another person exerts pressure that overcomes the testator’s independent judgment, causing them to make decisions they would not otherwise have made.
For this reason, it is good practice to meet privately with your lawyer when discussing your estate plan.
Family members, caregivers, or beneficiaries should not answer questions on your behalf or participate in giving instructions unless absolutely necessary. A private meeting allows your lawyer to determine whether your wishes are genuinely your own and whether anyone appears to be influencing your decisions.
If your lawyer asks to speak with you alone, do not take offence. It is an important safeguard designed to protect both you and the validity of your Will.
5. Sign Your Will at Your Lawyer’s Office
The final step is just as important as the drafting process.
Your lawyer should have another opportunity to assess your capacity immediately before you sign your Will. Executing the Will in the lawyer’s office also ensures that independent witnesses are present who can later testify, if necessary, that you understood the document you were signing.
Professional witnesses, such as legal assistants or law clerks, are impartial and are generally much easier for an Estate Trustee (executor) to locate years later than neighbours or family friends.
Signing your Will in a professional environment creates another layer of evidence supporting its validity and helps reduce the risk of future disputes.
Protecting Your Estate Plan
A carefully drafted Will is only part of an effective estate plan. Equally important is preserving the evidence that demonstrates you possessed the legal capacity to make your decisions freely and independently.
By working with an experienced estates lawyer, obtaining medical evidence where appropriate, documenting your wishes, meeting privately with your lawyer, and signing your Will in a professional setting, you significantly improve the likelihood that your final wishes Will be respected.
While no one can eliminate the possibility of a Will challenge, these practical steps provide your executor with the strongest possible foundation to defend your estate and honour the decisions you have made.
Proper estate planning is not simply about distributing assets. It is about protecting your legacy, reducing the risk of family conflict, and ensuring that the people and causes you care about benefit exactly as you intended.
Brian Madigan LL.B., Broker