Capacity is task specific. A complex will requires a simply higher capacity level on the part of the maker than a simple will. That can be an important consideration where a will-maker is tottering on the edge of incapacity. Some specialist lawyers in this area have adopted a practice known as a “tear-away will” to address that situation. What does that look like? This article provides a brief description of the strategy:
A “tear-away will” is suggested as a tool to be used when a will-maker is on his or her deathbed. Suffering from diminished capacity, the client may not understand a complex will. In pain, and possibly suffering from difficulties remaining conscious or concentrating, the client may find it difficult to attend to the explanation and execution of a will-document that might stretch to ten or twenty or fifty pages long. A tear-away will breaks the longer document into a main will, brief, easily understood and to the point, containing and carrying forward the most important elements of the estate plan, and one or more codicils to the main will, signed immediately afterwards or after a brief rest, containing any provisions that are longer and more demanding. Those provisions may include material that is contingent, and unlikely to be necessary, such as alternate executors or gifts over, or that is unduly complex, such as the terms increasing the effectiveness of a basic charitable gift made in the main will, or that are so called “boiler-plate” provisions, such as paragraphs speaking to bonding, perpetuities, or taking executor’s fees in installments. A person attacking the will may succeed in convincing a court that the will-maker did not have the capacity to understand the more complex provisions, or was unable to concentrate long enough to understand the ten pages of boiler-plate. But where that occurs the codicils are intended to fall by the wayside. The main will, stark in its simplicity, and signed first after five minutes of explanation, is more difficult to attack. The idea is to have the main will successfully go to probate even if the codicils fail.
There is extensive authority for the proposition that the complexity of the will affects the capacity threshold for the maker. The practice suggested here is not common, but is well founded.
* 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 (firstname.lastname@example.org).