What Is Testamentary Capacity?

Testamentary capacity is the legal term for having a sound enough mind to make a will. It’s not about being perfectly healthy or sharp: it’s about understanding the basic elements of what you’re doing when you create the document.

The legal test requires the person to understand:

1. They’re making a will – They know this document will distribute their property after death.
2. What property they own – They have a general sense of their assets (exact values and complete inventories aren’t required).
3. Who would normally inherit – They understand their family relationships and who would reasonably expect to benefit
4. How these connect – They can make rational decisions about who should get what based on their relationships and property.

Most people overestimate how much mental capacity is required to make a valid will.

You may have testamentary capacity even with:

• Diagnosed dementia or Alzheimer’s disease
• Memory problems and confusion
• Needing assistance with daily activities
• Having someone else manage your finances through power of attorney
• Being elderly and experiencing cognitive decline
• Taking medications that affect your thinking

The law recognizes that making basic decisions about who inherits your house is much simpler than managing investments or running a business. Courts want to respect people’s autonomy to control their property.

Lack of testamentary capacity means the person’s mental state prevented them from understanding the essential elements of making a will at the time they created it.

This might occur due to:

• Advanced dementia where the person doesn’t recognize family members
• Severe mental illness affecting reality perception

• Intoxication from alcohol or drugs

The key question: At the specific moment the will was signed, did the person understand what they were doing?

When testamentary capacity is challenged in court, both sides present evidence about the person’s mental state at the time they made the will.

Medical evidence:

• Doctor’s assessments from around that time
• Hospital records if the will was made during illness
• Diagnosis records for dementia, Alzheimer’s, or other cognitive conditions
• Medication lists showing drugs that impair thinking
• Expert opinions from geriatric specialists or psychiatrists

The lawyer’s observations:

• Notes from the lawyer who prepared the will about their impressions
• Whether the person communicated clearly and consistently
• If the lawyer had any concerns about capacity
• Whether the lawyer conducted any capacity screening

The will’s content:

• Do the provisions make logical sense
• Are they consistent with previous estate plans
• Is there a reasonable explanation for any changes

Capacity must exist at the moment the will is executed, not before or after.

Someone might:

• Have capacity on Monday when they sign the will but lose it by Friday
• Lack capacity generally but have a lucid moment when they meet with the lawyer
• Have capacity for a simple will but not for complex trust arrangements
• Understand one day but be confused the next due to fluctuating conditions

This is why documentation from the specific day matters so much. A dementia diagnosis from six months earlier doesn’t automatically prove lack of capacity on the day the will was signed.

Our estates litigation lawyers represent families challenging wills based on lack of capacity and defend valid wills against unfair challenges. 

Contact us at info@pintoshekib.ca or 416.901.9984.