Loss of Mental Capacity by Sellers



You are the potential Listing Agent and both the husband and the wife (elderly couple) are concerned that the other partner is losing his/her faculties.


Incapacity, incompetency, undue influence, trustees, committees, attorneys (appointed by POS) are all important and difficult issues. There are basically 5 test questions in order to come up with the right assessment for this situation.

This will be difficult to do on your own. They should dispose of their principal asset unless they are similarly capable of making a Will.

The testator must be:

1. Capable of understanding the act of making a will and its effects;

2. Capable of understanding the nature and extent of their property relevant to the disposition;

3. Capable of evaluating the claims of those who might be expected to benefit from his estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;

4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and

5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

The list above has been proposed by Ian Hull an experienced practitioner in the field and goes slightly beyond the principles set out in Banks v. Goodfellow, often viewed as the common law standard.

Brian Madigan LL.B., Broker


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