Categories: Elder Law

Disputed Estates Based Upon Mental Capacity

When a person dies with a properly written, signed, and witnessed Will in place, the administration of the estate usually proceeds without difficulty.  Unfortunately, some people die without a Will or with a Will that is invalid due to the failure of the Will to conform to the ‘formal’ requirements for a valid Will established by the provisions of the British Columbia Wills, Estates and Succession Act [1]  (WESA, formerly with Wills Act).  Wills, however, can also be held to be invalid if a court finds that the Will maker lacked the necessary mental capacity to make a Will.  If a Will is invalidated on that basis, the estate will be distributed in accordance with an earlier valid Will or in the absence of a valid Will, according to the intestacy provisions of WESA.

The common law establishes the legal principles or tests to be applied to determine whether a Will maker had the necessary mental or “testamentary” capacity to make a Will.  In order for a court to find that such capacity existed at the time the Will was signed, the Will maker must be found on the evidence to have understood the effect and nature of making a Will, the general nature of his or her assets, that his or her assets were going to be given away, the identity of the beneficiaries named in the Will, whether there was a spouse or child that the Will-maker had a legal obligation to provide for and whether if certain family members were excluded from the Will, that could lead to a dispute over the terms of the Will.  The test for testatmentary capacity is sometimes referred to as the test from Banks v. Goodfellow, an English court case decided in 1870.

In a dispute over testamentary capacity, the person who claims the Will is valid is aided by a legal ‘presumption’ that the Will-maker had the necessary testamentary capacity.  Therefore, anyone challenging the Will must lead evidence of “suspicious circumstances” surrounding the preparation of the Will or tending to call into question the capacity of the Will maker.  Once that evidence is produced, the legal burden of proof shifts to the person who claims the Will is valid, to prove on a balance of probabilities that the Will maker knew and approved its contents in accordance with the test from Banks v. Goodfellow.

Medical evidence is typically introduced in such disputes as to whether the Will maker suffered from a mental condition such as dementia/Alzheimer’s disease at the time the Will was made.  Other relevant evidence typically includes the testimony of the lawyer or notary who prepared the Will as to the mental condition of the Will maker and other witnesses who have direct knowledge of the Will maker at the time of the Will.

In order to challenge a Will in Vancouver, British Columbia, it is necessary to a lawsuit..  These types of legal claims can be complicated and involve numerous complexities and deadlines.  It is important, therefore, to speak to a lawyer who can help you to obtain your rightful inheritance.

Talk to a Vancouver Estate Lawyer

Estate litigation can be lengthy and stressful, making it important to contact a Vancouver Estate Lawyer as soon as possible.  Legal disputes in the area of Wills and Estates are usually complex and time consuming.  The lawyers at McLarty Wolf are committed to helping those who may have been disinherited or who were only allotted a minimal amount in a Will made by an individual without the required mental capacity.  To discuss your case with one of our lawyers, call our office today at 604-688-9542 or send us an email at online contact form.


Mclarty Wolf

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Mclarty Wolf

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