We have commented elsewhere about the traditional methods of attacking a Will. One of those areas is claiming the will-maker aka the Testator, lacked testamentary capacity. In simple English, the person writing the Will did not have the mental wherewithal to actually make a Will. The legal phrase is a lack of testamentary capacity. There are a number of seminal cases on the point such as the old English case of Banks v. Goodfellow and the 2003 Ontario Court of Appeal decision in Hall v. Bennett Estate. The concept is to answer the following questions with a yes on the part of the testator:
1. Did they understand the nature and effect of the Will or Codicil?
2. Did they recollect the nature and extent of his or her property?
3. Did they understand the extent of what he or she was giving away under their Will or Codicil?
4. Did they remember the people that they normally might be expected to benefit under their Will?
5. Did they understand the nature of the claims that might be made by the people that are being cut out of the Will?
The courts are guided by long-established principles:
- The importance of testamentary freedom and autonomy that only when the law requires it, should the courts jump in to challenge and change a Will. In other words, within certain limits, a person making a will can distribute his or her estate as they see fit.
- That as long as one can prove that the Will was properly signed and met the formalities of the Succession Law Reform Act, that in the absence of suspicious circumstances, the person making the Will is presumed to have known and approved its contents and possessed the aforesaid necessary testamentary capacity to make the Will.
In other words, if all of the usual formalities such as the Will being in writing, signed generally in front of two witnesses, the courts begin with the assumption that the Will is valid in every regard and that the person making it knew what they were doing. It is for those persons who are attempting to set aside the Will to show why the testator lacked the appropriate testamentary capacity.