Capacity Required for Codicil*

The test for capacity for a will is taught at law school and is well-known to practicing lawyers. Do the rules change when it is not a will but a codicil that is under consideration? The following is a brief summary of the law on point:

Codicils are interesting as they can serve a variety of purposes. A codicil can be used to change the wording of an administrative power, to change the executor appointed to handle the estate, to correct an earlier drafting error, to add a small gift as a trifling remembrance, to make a larger and more substantial bequest, or to change the destination of the estate completely from one set of heirs to another. Codicils are also interesting as they can range so widely in complexity. A codicil can be significantly more complex than the will it amends or, more typically, significantly less complex.
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The onus is on the propounder of a codicil to prove that the codicil-maker enjoyed the necessary capacity to validly make it. Proof has to satisfy the normal civil standard, and the propounder is aided by the presumption of capacity, but not slaved to it. The capacity necessary to validly make a codicil is specific to the codicil itself. A simple codicil, doing no more than adjusting the amount of a small gift in an earlier will, can be validly made by a codicil-maker with significantly degraded capacity even though the codicil-maker is no longer able to satisfy the normal Banks v. Goodfellow test. A more complex codicil, one re-directing all the will-maker’s wealth in an ornate way, can carry with it a higher threshold test of capacity than would apply to a simple will. Where a will-maker’s capacity is on the upswing, the doctrine of republication works in such way as to allow a codicil to validate an earlier will that would otherwise fail for want of capacity.

The challenge in this area is that there is surprisingly little case law directly on point. Where the codicil re-directs the whole of the codicil-maker’s wealth the full and normal test from Banks v. Goodfellow is easily seen to apply. Where, however, the codicil does no more than appoint a different executor, or make a slight change to the amount of a small bequest, there is little motivation or financial sense in litigating the issue. Thus, there is little authority speaking to the capacity level necessary for a codicil making a small and relatively inconsequential change to a will. The principles that govern this difficult issue are first principles. Those general principles suggest that the capacity threshold varies with both the complexity and the practical significance of the change effected, not by rote depending on the category of transaction.

* John E.S. Poyser BA, LLB, TEP provides estate litigation services for clients, as well as opinion work for other lawyers, and has offices in Manitoba and Alberta (jpoyser@traditionlaw.ca).


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