Mental Capacity to Make a Will in Canada (Testamentary Capacity)
Testamentary capacity is the mental capacity required to make a valid Canadian Will. The Banks v. Goodfellow test governs across Canada. Understanding the test helps both testators (ensuring their Will is valid) and challengers (assessing when grounds for challenge exist).
The Banks v. Goodfellow test
From an 1870 English case, adopted across Canada and most Commonwealth jurisdictions. Still the leading test.
The testator must understand:
1. The nature of the act and its consequences
The testator must understand they are making a Will — a document that will distribute their property after death. They must understand this is a serious legal act with consequences.
Routine demonstration: Can the testator explain what a Will is and why they're making one?
2. The extent and nature of their property
The testator must have approximate awareness of what they own. Not exact down to the dollar, but general scope.
Routine demonstration: Can the testator describe their main assets — home, bank, investments, personal property?
3. The moral claims of others on their estate
The testator must understand who might reasonably expect to benefit — spouse, children, dependents, others. They don't need to include them all, but they need to know they exist and what relationships exist.
Routine demonstration: Can the testator name family members and describe relationships?
4. The disposition being made
The testator must understand what the Will says and why — who gets what and the reasoning.
Routine demonstration: Can the testator explain the Will's provisions in basic terms?
Capacity is moment-specific
Critical principle — capacity is assessed at the moment of signing, not based on general state.
Implications:
- Person with early dementia may have capacity on good days
- Person who later loses capacity may have made a valid Will earlier
- Person with intermittent capacity (lucid intervals) can make valid Will during clear period
- Specific to demonstrating capacity at the actual moment
This is why medical assessment around the time of Will signing is important when capacity is potentially questionable.
Sliding scale of capacity
While the test is the same, the demonstration required varies with the Will's complexity.
Simple Will (basic provisions, modest estate):
- Lower threshold of demonstration
- Basic understanding of the four elements
Complex Will (substantial estate, trust structures, business succession, multi-jurisdictional):
- Higher threshold
- Deeper understanding required
- Specific to comprehending what's being decided
Practical implication: A testator might have capacity for a simple Will but not for a complex one. Adapt the Will complexity to the testator's current capacity.
Cognitive conditions that affect capacity
Dementia and Alzheimer's
Most common capacity concern. Progressive condition with stages:
- Early stage: Often retains capacity, especially with cognitive aids and clear day
- Mid-stage: Variable; specific assessment needed
- Late stage: Typically lacks capacity
Best practice: Make or update Wills early after diagnosis while capacity is clear.
Stroke
Variable depending on extent and location of brain injury. Specific medical assessment needed. Some stroke survivors retain capacity; others don't.
Mental illness
Most mental illness doesn't affect testamentary capacity. Specific delusions or psychotic states might if they directly affect the testator's understanding of the four elements.
Medication effects
Some medications cause temporary cognitive impairment. Wills should not be signed when significantly impaired by medication, alcohol, or other substances.
Suspicious circumstances — burden shift
Under Vout v. Hay (SCC 1995), when suspicious circumstances surround Will preparation, burden shifts to proponent to prove capacity.
Suspicious circumstances include:
- Significant departure from prior Wills
- Substantial bequest to person involved in Will preparation
- Isolation of testator
- Recent cognitive concerns
- Will made shortly before death
When burden shifts, the executor/proponent must affirmatively prove the testator had capacity rather than the challenger having to disprove it.
Documentation when capacity might be questioned
If any doubt about capacity exists:
Medical assessment:
- Physician (family doctor or specialist)
- Geriatrician (specifically for elderly)
- Capacity assessor (some provinces have certified assessors)
- Documents capacity at the time of Will signing
Lawyer notes:
- Lawyer's contemporaneous notes from Will-making sessions
- Documenting testator's understanding
- Specific to questions asked and answers given
Independent witnesses:
- Witnesses not benefiting from Will
- Specific to observations of testator's capacity
Specific reasoning:
- Why the testator is making this specific Will
- Why departing from prior patterns (if applicable)
- Specific to documenting rational decisions
Specific protective steps
For testators with potentially questionable capacity:
- Make/update Will while capacity is clearest
- Get medical capacity assessment before signing
- Use independent lawyer (not arranged by potential beneficiary)
- Use independent witnesses
- Have lawyer document the meeting thoroughly
- Consider video recording the meeting (specific to provincial admissibility)
- Discuss with family in advance to reduce surprise
What to avoid
Waiting too long. Cognitive decline progresses. Make Will while capacity is clear.
Making Will at hospital deathbed. High capacity scrutiny; likely challenge target.
Significant changes shortly before death. Specific scrutiny for departures.
Will arranged by potential beneficiary. Independent process is essential.
Skipping documentation. When capacity is borderline, documentation makes the difference.
What we focus on at It's Simple Will
The Will Creator is designed for testators with clear capacity. For situations with potential capacity questions (recent diagnosis, advanced age with observed concerns), lawyer-assisted Wills with capacity assessment are more appropriate.
Related guides
Citations & sources
- [1]Banks v. Goodfellow (1870): Time to Update the Test for Testamentary Capacity — CanLII Commentary — analysis of the English case (LR 5 QB 549) adopted into Canadian testamentary-capacity law
- [2]Vout v. Hay (SCC 1995) — Supreme Court of Canada / CanLII
- [3]Canadian Bar Association — Wills, Estates and Trusts Section — Canadian Bar Association
Frequently asked questions
What's the legal test for testamentary capacity?
The Banks v. Goodfellow test (English court 1870, adopted across Canada and Commonwealth). The testator must understand four things — the nature of the act of making a Will and its consequences; the extent and approximate value of their property; the moral claims of family and dependents; and the disposition they're making and the reasons for it.
Does dementia disqualify someone from making a Will?
Not automatically. Capacity is assessed at the moment of signing, not based on general diagnosis. Many people with early-stage dementia retain capacity to make a Will. Later-stage dementia typically does eliminate capacity. Specific medical assessment recommended.
What if someone has lucid intervals?
A Will made during a lucid interval can be valid even if the person's general state is impaired. Specific to demonstrating that capacity existed at the moment of signing. Medical assessment and documentation important.
Is there a different standard for complex Wills?
Yes — the standard is the same in principle but more demonstration is required for complex Wills. Simple Will with straightforward provisions requires basic understanding; complex Will with trust structures, business succession, multi-jurisdictional assets requires the testator to understand more. Specific to circumstances.
Can capacity be challenged?
Yes. Capacity challenges are among the most common Will challenges. Generally the burden is on the challenger to prove lack of capacity. BUT under Vout v. Hay (SCC 1995), if suspicious circumstances surround Will preparation, burden may shift to the proponent to prove capacity.
Should I get a capacity assessment?
Recommended when any doubt exists. Specifically — recent diagnosis of cognitive impairment; significant age and observed cognitive issues; family conflict where capacity may be challenged; significant departure from prior Wills; substantial bequests to non-traditional beneficiaries. Physician, geriatrician, or capacity assessor (some provinces have certified assessors).