The Supreme Court of Canada in LEGER v. POIRIER, [1944] S.C.R. 152 dealt with the issue of capacity and the onus of proof.
The Court held “…. that a document propounded for probate as a deceased’s last will should be declared not to be her last will, because it did not satisfactorily appear that it was executed by a competent textatrix.
According toRand JJ.:
- Facts in evidence cast on the whole case such a doubt of the competency of the testatrix as required the Court to say that the onus of showing the document to be the will of a “free and capable” person had not been met.
- There may be testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters: that is, the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics.
- A “disposing mind and memory” is one able to comprehend, of its own initiative and volition,
- the essential elements of will making,
- property,
- objects,
- just claims to consideration,
- revocation of existing dispositions, and the like.
- Merely to be able to make rational responses is not enough, nor to repeat a tutored formula of simple terms.
- There must be a power to hold the essential field of the mind in some degree of appreciation as a whole, and this was not present here.
Comment
The person attempting to prove a Will, has the onus of proving testamentary capacity.
Brian Madigan LL.B., Broker