When does the client have to have testamentary capacity during the will making process?
The law dealing with the due execution of a valid last will and testament is clear in providing that the testator must have testamentary capacity as of the date they give instructions, not necessarily as of the date they sign the will giving effect to those instructions. As of that later date, that is, at the date of execution, the testator has to satisfy a test with a lower threshold. The testator simply has to be aware that the document they are signing is in fact their last will and testament and gives effect to the instructions they gave earlier to their solicitor. The law on this point has been settled since 1883 with the English decision of Parker v. Felgate.1 It remains the law in England today. In Canada, the Parker decision has been followed extensively in various jurisdictions.2
As an example where the timing of a testator’s testamentary capacity is important, the English courts recently reaffirmed the law in Clancy v. Clancy.3 The testatrix had given instructions in November 1999. She was at the time of sound mind. However, she had not yet executed her will when she was diagnosed with terminal cancer in March 2000. She survived only two weeks after diagnosis. However, within that time, the lawyer attended the hospital at her request and signed the will with a staff nurse as the second witness. At the time of execution, the testatrix was heavily drugged, and it is very unlikely that she could have had testamentary capacity. However, the judgment reaffirmed the law in which she need only understand what the document was that she was signing, and not that she had testamentary capacity. The will was valid.
The affidavit of execution included in the Queen’s Bench Rules at Form 74F is potentially problematic. It provides that “the testator was of sound mind, memory, and understanding at the time of execution of the will.” It speaks to the date of execution, not to the date on which the instructions are given. One possibility is that the phrase “sound mind, memory and understanding” does not equate to testamentary capacity in this context, and only refers to the lesser standard imposed at execution. Otherwise, the affidavit of execution might be construed as being at odds with the common law.
However, a brief search of the case law suggests that the phrase “sound mind, memory and understanding” does in fact denote the legal test for full testamentary capacity.4 Therefore, if that phrase is more properly equated with testamentary capacity, and circumstances arise where a testator clearly does not have full testamentary capacity at execution, then it might be appropriate to amend the affidavit of execution to make the situation clear to any court asked to admit the will to probate. The Queen’s Bench Rules allow amendments to the forms as circumstances require.5 A possible amendment may be as follows:
The testator was of sound mind, memory and understanding at the time instructions were taken, and understood that he was executing a will giving effect to those instructions as of the date of execution.
It is submitted that the best practice is to amend the affidavit of execution under circumstances where the Parker v. Felgate doctrine is clearly in play.
This problem appears to have been circumvented in other provinces. As examples, consider Ontario and Alberta. The Ontario affidavit of execution does not reference the testator’s competency or understanding. The Alberta form is, arguably, more in keeping with the common law, and provides that the witness believe the testator:
… understood that the document being signed was the deceased’s will; and … was competent to sign the will.6
The wording of the Alberta affidavit of execution appears to more closely parallel the common law as expressed in the Parker decision and could be used as an alternate formulation of the amendment that might be made to the Manitoba form where circumstances warrant or demand.
1. Parker v. Felgate (1883), L.R. 8 P&D 171 (PDA) [Parker].
2. Bradshaw Estate (Re) (1988), 30 E.T.R. 276, 90 N.B.R. (2d); Faulkner v. Faulkner (1920), 60 S.C.R. 386; Rogers v. Davis,  S.C.R. 407,  3 D.L.R. 351.
3. Clancy v. Clancy (2003) All E.R. (D) 536.
4. E.g. Laramee v. Ferron (1909), 41 S.C.R. 391, ¶ 44.
5. Queen’s Bench Rule 1.06.
6. Surrogate Rules, Alta. Reg. 130/1995, NC8.
* John E.S. Poyser is a member of the Wealth and Estate Group at Inkster Christie Hughes LLP. He is a past chair of both the Manitoba and National CBA sections dealing with wills and estates. Daniel Watts is an articling student working within the practice group. © John E. S. Poyser 2009. This article was current when it was written. No effort has been made to update it. It is not a replacement for legal advice.