How To Challenge A Will For Lack Of Capacity?

When someone challenges a will, one of the most common grounds is lack of testamentary capacity: the claim that the person who made the will didn’t have the mental ability to understand what they were doing when they signed it.

To have testamentary capacity, the will-maker must:

Understand the nature and effect of making a will: they must know they’re making a document that distributes their property after death.

Know the extent of their property: they must have a general understanding of what they own, though they don’t need to know every detail or exact values.

Understand who has claims on their estate:  they must know who would naturally expect to benefit (spouse, children, dependents), even if they choose to exclude them.

Not be suffering from a disorder of the mind that affects their judgment about these matters — delusions, mental illness, or cognitive impairment that distorts their understanding of the above factors.

Capacity must exist at the moment the will is executed — when it’s signed. This is crucial because someone’s mental state can fluctuate.

A person with dementia might have lucid intervals where they have capacity, even if they lack it most of the time. If the will was executed during a lucid interval, it’s likely valid.

Conversely, someone might generally be capable but lack capacity at the specific moment of signing due to medication, illness, or a brief episode of confusion. The will executed during that moment would likely be invalid.

This makes timing evidence, medical records, witness observations from that day, and the lawyer’s notes from the signing appointment absolutely critical.

If the will appears regular on its face, properly executed, witnessed, and seemingly rational, the law presumes the will-maker had capacity. The burden shifts to the person challenging the will to prove a lack of capacity.

However, if suspicious circumstances exist, the will-maker was very elderly, had known cognitive issues, or the will contains irrational provisions, the burden may shift back to those defending the will to prove capacity existed.

Medical Records

Records from around the time of the will execution are crucial. Diagnoses of dementia, Alzheimer’s, or other cognitive impairments are relevant, but not automatically disqualifying. Courts look at the severity and whether it affected the specific abilities required for testamentary capacity.

Lawyer’s Notes 

If a lawyer prepared the will, their contemporaneous notes about the client’s understanding and mental state carry weight. Did the lawyer assess capacity? What questions did they ask? How did the client respond?

Witness Testimony

People who interacted with the will-maker around the time of signing can testify about their mental state, lucidity, confusion, or unusual behavior.

Expert Medical Evidence

Doctors who treated the will-maker, or experts who review medical records retrospectively, can opine on whether the person likely had capacity. However, retrospective opinions are often less persuasive than contemporaneous medical assessments.

Capacity challenges face significant hurdles. The presumption of capacity, the fact that most people are careful when executing wills, and the difficulty of proving someone’s mental state at a specific past moment all favour upholding wills.

Successful challenges typically require strong medical evidence of significant cognitive impairment at the time of execution, evidence of suspicious circumstances suggesting undue influence or lack of understanding, and testimony from multiple witnesses about the will-maker’s confusion or incapacity.

Contact us at 416.901.9984 or info@pintoshekib.ca for a confidential consultation about your estate dispute or will challenge.