Capacity is one of the most common—and most litigated—issues in Wills and Estates. In British Columbia, a Will is vulnerable to being set aside if the Will-maker lacked the requisite testamentary capacity at the time the Will was made (typically, when it was executed). When capacity is uncertain, estate administration may be delayed by objections or court applications, and the resulting disputes can be costly and highly contentious.
A clear understanding of how capacity is assessed under British Columbia law can help reduce the risk of future challenges and preserve the Will-maker’s intentions.
Testamentary Capacity in British Columbia: The Legal Standard
British Columbia courts assess testamentary capacity primarily through common law principles (often associated with the Banks v. Goodfellow framework). In practical terms, the question is whether, at the relevant time, the Will-maker had a sufficient level of understanding to make a Will.
Capacity does not require perfect memory or ideal health. The Will-maker is generally expected to understand that they are making a Will and that it Will govern the distribution of their property on death. The Will-maker should also be able to understand, in a general way, what property they own and the nature of their assets, even if they cannot provide an exact inventory. Finally, the Will-maker must be able to recognize the people who might reasonably be expected to benefit—often close family members—and form a rational plan for distribution in light of those relationships.
Although the legal focus is the moment of execution, evidence from before and after the signing frequently becomes important in disputed cases, particularly where capacity fluctuated or declined over time. Where instructions were given on one date and the Will was executed on another, the Will-maker’s capacity at both stages may become relevant to the court’s assessment.
Statutory Context Under WESA
British Columbia’s Wills, Estates and Succession Act (WESA) provides the statutory framework for Wills and estate administration. As a general rule, WESAcontemplates that a Will-maker must be at least 16 years of age and mentally capable to make a valid Will (subject to limited statutory exceptions). While WESA supplies the legislative structure, the detailed content of “testamentary capacity” is largely supplied by the common law test applied by the courts.
Capacity Is Not a Diagnosis
A frequent misconception is that a diagnosis of dementia, cognitive decline, or mental illness automatically prevents a person from making a Will. That is not the law in British Columbia. The legal inquiry is functional and time-specific: the issue is whether the Will-maker met the legal standard when the Will was made.
Accordingly, an elderly person, or a person living with memory impairment or a cognitive diagnosis, may still have testamentary capacity—particularly where cognition fluctuates. In appropriate cases, a “lucid interval” may be relied upon, but it must be supported by credible evidence showing the Will-maker understood what they were doing at the relevant time.
The reverse is also true. The absence of a diagnosis does not guarantee capacity. A person may lack testamentary capacity if they cannot understand the nature and consequences of making a Will, cannot comprehend their property in broad terms, or cannot appreciate the claims of those who might reasonably expect to benefit.
Why Capacity Challenges Arise After Death
Capacity disputes most commonly arise after death, often brought by individuals who expected to receive more under the Will or who were excluded entirely. These challenges are more likely where a Will represents a marked departure from prior plans, where close family members are disinherited, or where the Will was made during a period of illness, hospitalization, or observable cognitive decline.
British Columbia courts typically examine the surrounding circumstances carefully. In practice, capacity allegations are frequently advanced alongside related claims such as lack of knowledge and approval, and undue influence. Where the circumstances appear unusual or concerning, the court may require stronger evidence that the Will-maker both had capacity and understood and approved the contents of the Will. This is often discussed in the case law under the concept of “suspicious circumstances.”
What Evidence Tends to Matter Most
In a contested file, the court’s assessment is often evidence-driven. The drafting lawyer’s contemporaneous notes, observations, and file documentation can be highly influential, particularly where they demonstrate a careful interview process and a clear record of the Will-maker’s understanding and reasons. Medical records may also be relevant, though medical evidence is not determinative of the legal question. Evidence from witnesses, caregivers, family members, and friends about the Will-maker’s functioning and communications around the time of the Will can also be important.
Because the Will-maker is not available to clarify intentions after death, well-created contemporaneous records often become the foundation of the court’s factual findings.
The Lawyer’s Role and Common Safeguards in Higher-Risk Files
Although testamentary capacity is ultimately a legal determination for the court, competent Wills practice in British Columbia requires attentiveness to capacity concerns and appropriate inquiry where “red flags” exist. In higher-risk circumstances—such as significant cognitive impairment, major changes to beneficiaries, dependency dynamics, or heightened family conflict—additional safeguards are commonly used. These may include meeting privately with the Will-maker to obtain instructions free from influence, documenting the Will-maker’s reasoning for key decisions, and, where appropriate, obtaining a contemporaneous medical opinion focused on functional decision-making.
These steps are generally intended to protect the Will-maker’s autonomy and reduce the likelihood that the Will is later undermined by avoidable evidentiary gaps.
If Capacity Is Lacking: What Happens to the Estate
If the court finds that the Will-maker lacked testamentary capacity when the Will was made, the Will may be declared invalid (in whole or in part). In that event, an earlier valid Will may govern the estate. If there is no earlier valid Will, the estate Will be distributed according to the intestacy provisions of WESA, which may produce outcomes that differ substantially from what the deceased intended.
Reducing Risk Through Proactive Planning
Capacity-related disputes are highly fact-specific, but the risk of litigation often decreases when planning is done early, reviewed periodically, and carefully documented—particularly where a Will departs from what family members might expect. Where capacity may be questioned in the future, the manner in which the Will is prepared and executed can be as important as the wording of the Will itself.
Questions of capacity depend on the circumstances at the time a Will is made, and what is sufficient in one situation may not be sufficient in another. If there are concerns about capacity or a Will is being made in complex circumstances, Northam Law Corporation can assist with BC estate planning. Please contact 604-630-2350 or melissa@northam-law.com.
** The information in this article is for general informational purposes only and does not constitute legal advice. Laws can and do change over time and every legal situation is unique. You should consult with a qualified legal professional, such as the team at Northam Law, to obtain advice tailored to your specific circumstances before making any decisions.
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