Testamentary CapacityWill ChallengesBanks v GoodfellowCapacity Assessment
Capacity is assessed at the time the will was made, not before and not after.
The Short Answer
What is testamentary capacity?
The legal capacity to make a valid will. The testator must understand the nature of the act and its effects, understand the extent of the property being disposed of, be able to comprehend and appreciate the claims of those who might expect to benefit, and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties. It is assessed as at the time the will was made.
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THE TEST
Four Elements, All at the Same Moment
The classic formulation requires that the testator:
Understands the nature of the act of making a will and its effects.
Understands the extent of the property being disposed of.
Is able to comprehend and appreciate the claims of those who might expect to benefit.
Has no disorder of the mind that perverts their sense of right, or prevents the exercise of their natural faculties in disposing of their property.
The third element does real work. A testator need not provide for everyone with a claim, but they must be able to appreciate that those claims exist. A person who has forgotten a child entirely is in a different position from one who has decided not to benefit them.
MEDICINE AND LAW
A Diagnosis Does Not Decide It
This is the most common misunderstanding. A diagnosis of dementia does not establish incapacity, and the absence of a diagnosis does not establish capacity.
Capacity can fluctuate. A person may have capacity in the morning and not in the afternoon, or may retain capacity for a simple will while lacking it for a complex one. The complexity of the estate and of the dispositions is part of the analysis.
Medical evidence is important, but it informs the legal test rather than answering it. A physician's note that the patient was oriented and pleasant is not an assessment of testamentary capacity.
THE EVIDENCE
What Decides These Cases in Practice
The drafting solicitor's file is usually the single most important document. Detailed notes recording the instructions given, the questions asked, the testator's understanding of their assets and family, and the solicitor's own assessment carry substantial weight.
Contemporaneous medical records covering the relevant period matter, as do the accounts of people who dealt with the testator around that time.
What carries little weight is a family member's recollection years later that the testator "seemed fine" or "wasn't himself". These cases are decided on records made at the time.
PROTECTING A WILL
What Makes One Hard to Challenge
Where capacity may later be questioned, several steps materially improve the position:
Instructions taken from the testator alone, with no beneficiary present.
A detailed solicitor's file note of the instructions and of the capacity assessment made.
A formal capacity assessment contemporaneous with the will, in appropriate cases.
A recorded explanation where the will departs from expectations or from a previous will.
Neutral witnesses, never a beneficiary or a beneficiary's spouse.
None of this is expensive relative to litigation. All of it is unavailable afterwards.
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Immigration consulting services are provided by Regulated Canadian Immigration Consultants (RCICs) in good standing with the College of Immigration and Citizenship Consultants (CICC) under the College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29, s. 292.
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Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
Limitation Periods
Failure to commence proceedings within applicable limitation periods may permanently bar your claim. In Ontario, the general limitation period is two (2) years from discovery under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Seek legal advice promptly.
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How Lexaltico LLP handles personal information, under PIPEDA and Ontario law.
What we collect
What you give us
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Purpose
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The four things that matter most
Nothing on this site is legal advice, however specific it looks.
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Do not send confidential information before a retainer is signed.
Past results depend on their own facts and do not predict yours.
What this site is
Information, not advice
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The difference is practical rather than technical. A page explaining that spousal support is
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Why you should not send us documents yet
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What they do and do not tell you
Case results described anywhere on this site are real and are described accurately, and they are
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Calculators on this site produce estimates from the figures you enter. They apply published
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To the fullest extent the law permits, Lexaltico LLP is not liable for any loss arising from your
use of, or reliance on, anything published on this website.
Governing law
These terms are governed by the law of Ontario and the federal law of Canada that applies in
Ontario. Lawyers and licensed professionals at the firm are regulated by the Law Society of
Ontario, and marketing on this site is intended to comply with the
Rules of Professional Conduct.
Every limit on what this website tells you, and every thing it does not do, in one
place rather than in small print at the bottom of each page.
Before you rely on anything here
Four limits, and they matter in this order.
Not legal advice
Everything published on this website is general information. It is not legal
advice, it does not take account of the facts of any particular situation, and reading it does not
create a solicitor client relationship. Do not act, or decide not to act, on anything here without
speaking to a lawyer licensed in your jurisdiction about your own circumstances.
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These pages describe the law of Ontario, and of Alberta only
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Each page states the law as at the review date shown on it. Legislation is amended and case law
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Generality
These pages describe how a rule usually works. That is not the same as how it applies to your
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If you contact us
If you are in danger
If you or a child are in immediate danger, call 911.
This website is not an emergency service. Enquiries sent through a form here are read during
business hours and a reply may take up to one business day.
Using this website, submitting a form, sending an email or speaking to us on the telephone does
not make us your lawyers. That relationship arises only when the firm has
confirmed in writing that it has agreed to act, a conflict search has been completed, and a
retainer has been signed.
Confidentiality of enquiries
Do not send confidential or sensitive information through this website or by email until we have
confirmed in writing that we can act for you. Information sent before that point is
not treated as confidential and may prevent us from acting for you, or for
someone else, in a connected matter.
Response times
We aim to reply within one business day. Contacting us does not guarantee a reply within any
particular period, does not oblige the firm to act, and does not stop, extend or satisfy
any limitation period, filing date or court deadline.
Our telephone line
Our line is answered 24 hours a day, every day of the year. Outside office hours calls are taken
by our intake service, who record your details and pass them to the firm. A lawyer responds during
the next business day, or sooner if the matter is urgent. Answering the telephone is not the same
as giving legal advice, and no relationship arises from that call.
Who we are and how we are regulated
Law Society of Ontario
Lexaltico LLP is regulated by the Law Society of Ontario under the
Law Society Act, R.S.O. 1990, c. L.8. All lawyers practising in
Ontario through the firm are members in good standing.
Law Society of Alberta
Alberta matters are handled by lawyers licensed with, and in good standing with, the
Law Society of Alberta. A lawyer licensed in Ontario is not thereby licensed in
Alberta, and the reverse is also true.
Immigration regulation
Immigration consulting is provided by Regulated Canadian Immigration Consultants
in good standing with the College of Immigration and Citizenship Consultants under the
College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29,
s. 292.
Lawyers, paralegals and consultants
Not everyone at the firm is a lawyer.
Licensed paralegals in Ontario may act only within the scope the Law Society
permits, which does not include most family, estate or criminal matters.
Immigration consultants are regulated by the College, not by a law society,
and are not lawyers.
Law clerks and managers support files but do not give legal advice.
Each page and biography states which applies. Ask at the outset who will handle your matter and
under which licence.
Languages
We serve clients in thirteen languages. Every page of this website is written and published in
English. Where anything is provided in another language, the English
version governs in the event of a difference. If you need an interpreter, tell us when
you book and we will arrange one.
Fees
The initial assessment
The complimentary 15 minute initial assessment is a brief introductory
conversation. It does not include a review of your documents and does not constitute
legal advice.
The firm charges a fee for substantive consultations, including in civil litigation,
criminal defence and immigration matters. The firm may waive that fee at its discretion.
Any fee is disclosed in advance and credited in full toward your account if you retain the
firm.
Referral fees
Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
What is published on this site
Calculators and estimators
They produce estimates from what you type and cannot know the rest. They do not
account for the terms of your contract, statutory exceptions, or the discretion a court will
apply. Do not make a decision on a number produced by a calculator.
Past results
Any outcome described happened on its own facts, before its own decision maker,
under the law as it stood at the time. Past results do not predict or guarantee the result of any
other case.
Reviews and testimonials
Reviews shown here are written by third parties and published on platforms we do not control. Each
describes one person’s experience of one matter. They are not a promise, a
prediction or a guarantee about any other matter.
Links to other websites
This site links to regulators, courts, government sources, professional associations and social
platforms, all operated by others. We do not control them, we are not responsible for
their content or accuracy, and a link is not an endorsement.
Other notices
Limitation periods
Failure to start a proceeding within the applicable limitation period may permanently bar
your claim. In Ontario the general period is two years from discovery
under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
Shorter periods apply to many claims. Seek advice promptly. Nothing on this website extends a
limitation period.
Accessibility
We aim to meet the Accessibility for Ontarians with Disabilities Act
and WCAG 2.1 Level AA. If any part of this site prevents you from reaching us, telephone
+1 416 333 6200 or write to
hello@lexaltico.com and we will provide the information
in another format, at no charge.
