Testamentary Capacity Required on Date Will is Executed*

A will is valid only if the maker has testamentary capacity. What if the will-maker displays that capacity at the beginning of the process with his or her lawyer, when instructions are given, but loses capacity by the end of the process, when the will is signed? This article provides a brief summary of the law on point:

As a general rule, a person making a will must have the requisite testamentary capacity on the date the will is signed. An exception is available and the general rule does not apply where the will is prepared and signed as part of a two stage process, with the will-maker giving instructions to a lawyer for the preparation of a will on one day and then, at a later date or time, signing a will prepared to accurately give effect to those instructions. Where that occurs, the test for capacity is relaxed on the date of execution, and the will-maker does not have to possess full testamentary capacity at that time. Instead, the will-maker need only to have the capacity to understand that he or she is signing a will, and that the will being signed gives effect to the instructions communicated earlier. Provided that vestigial thread of capacity remains, and full testamentary capacity had been present earlier, it will not defeat the will even though the will-maker’s capacity has diminished to the point where he or she can no longer understand the terms of the will, or no longer has the powers of mind to understand the instructions he or she gave earlier, or has lost the capacity to reformulate those instructions. The authorities support the conclusion that the loss of capacity can be fairly profound, and includes examples of will-makers who have successfully executed wills while clearly lacking testamentary capacity and barely able to keep conscious. This exception generally comes into play when a lawyer is involved but is not limited to that scenario. What is required is a crystallized statement of the will-maker’s final testamentary intent when the will-maker has testamentary capacity followed by an accurate reproduction of that intent in the form of a will signed later. All of these points are discussed in the sections that follow.

The exception outlined above is commonly ascribed and cited to Parker v. Felgate, but has been a consistent component of the laws of England for more than 250 years. It remains good law in England. It has been cited with approval and consistently applied in Canada. It appears to enjoy continuing approval and application in New Zealand as well.

*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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