McLarty WolfMcLarty Wolf

604-687-2277 | Toll Free: 1-855-688-9542
  • About Us
  • Practice Areas
    • Elder Abuse
      • Elder Financial Abuse
      • Committeeship
      • Misuse of Power Of Attorney
    • Estate Litigation
      • Wills Variation
      • Contested Wills
      • Contested Trusts
    • Contract Disputes
      • Breach of Contract
      • Business Disputes
      • Fraud
    • Real Estate Litigation
      • Land Ownership Disputes
      • Partition of Property
      • Construction
  • Our People
    • ROSS MCLARTY
    • MURRAY WOLF
    • JORDANA BLAESER
    • RAYN ATTERBERRY
    • PEYTON STRAIN
    • SAMANTHA PACHECO
  • Blog
  • Contact
  • Home
  • Elder Law
  • What Is Examined in Cases Regarding Testamentary Capacity?
 

Blog Post

What Is Examined in Cases Regarding Testamentary Capacity?

by Mclarty Wolf / Saturday, 18 February 2017 / Published in Elder Law
Gold Ink Pen | McLarty Wolf Litigation Lawyers

British Columbia law sets out many different requirements1 for a last will and testament to be valid and enforceable. For example, the will must be in writing, it must be dated, must be signed and witnessed appropriately, and you must agree with the provisions in the will without feeling pressure or being misled by anyone else. Furthermore, one of the most important requirements is that you have “testamentary capacity” to draft and sign the will.

If a loved one dies and you believe their will was created when they did not have the necessary testamentary capacity, you should immediately discuss your situation with an experienced estate litigation lawyer to see how to best proceed.

Signs of testamentary capacity

Determining testamentary capacity can be difficult for many reasons. First, you may not simply question the testator as they have since passed away. Additionally, you must go back in time and examine their capacity (or lack thereof) at the time the will was created. This may be years before their death and there may be a lack of concrete evidence regarding their state of mind at the time they signed the will.

Because of these challenges, courts examine many factors to determine whether or not an individual had the requisite testamentary capacity, including whether the will-maker understood the following:

  • The effect and nature of making a will
  • The general nature of their assets
  • That they were giving away assets and to whom
  • Whether there are spouses, children, or others who should rightfully inherit under the will
  • That excluded important heirs may lead to disputes

Important evidence in these cases can include notes in the lawyer’s file who drafted the will. For example, if there was a child or another individual present giving instructions and the will-maker was simply following them, capacity and the possibility of undue influence may be in issue. Mental conditions, such as dementia or delusions, may also be examined but are not automatic challenges to testamentary capacity.

Call an experienced estate litigation lawyer in Vancouver for assistance with a possible case

If you believe you have a contested will due to lack of testamentary capacity or simply have any other legal issues regarding wills, please call an experienced BC estate litigation lawyer at McLarty Wolf at 604-687-2277 for assistance today.

References:

1http://www.ag.gov.bc.ca/legislation/shareddocs/wesa/Part4.pdf

What you can read next

Financial Elder Abuse: Common Signs and Types to Be Aware Of
What Are the Signs of Financial Elder Abuse?
Appointing a Committee (Legal Guardian) for an Incapable Person | McLarty Wolf Litigation Lawyers
Appointing a Committee (Legal Guardian) for an Incapable Person
Holding Hands | McLarty Wolf Litigation Lawyers
Disputed Estates Based Upon Mental Capacity

You must be logged in to post a comment.

Categories

  • Contract and Commercial Litigation
  • Elder Law
  • Insurance
  • Mental Incapacity and Estate Litigation
  • Real Estate and Property Disputes
  • Trust and Estate Litigation

Recent Posts

  • Case Comment: Holman v Brooke, 2022 BCSC 526 | McLarty Wolf - Vancouver Litigation Lawyers

    Case Comment: Holman v Brooke, 2022 BCSC 526

  • Registrar's Hearing Passing of Accounts | McLarty Wolf

    Registrar’s Hearing-Passing of Accounts

  • The Duty to Account and the Passing of Accounts | McLarty Wolf Law

    The Final Phase in Administering an Estate: The Duty to Account and the Passing of Accounts

  • Proprietary Estoppel: What Remedies are Available? | McLarty Wolf

    Proprietary Estoppel: What remedies are available when someone takes back a promise to transfer property?

  • Proprietary Estoppel: When is a Real Property Owner Required to Follow Through on a Promise to Transfer Land to Someone Else? | McLarty Wolf Litifation Lawyers Vancouver

    Proprietary Estoppel: When is a Real Property Owner Required to Follow Through on a Promise to Transfer Land to Someone Else?

McLarty Wolf adheres to all provincial health recommendations in operating its office in downtown Vancouver.  Our lawyers and paralegals both work in our office and at times remotely to ensure our clients’ needs are satisfied.  We continue to attend court hearings, mediations and examinations for discovery.  We are also available for client meetings at our office, with appropriate safeguards, or via video conference.

ABOUT US

With a combined litigation experience of over 75 years, our lawyers have a consistent track record of providing sound advice and effective representation to resolve legal disputes for our clients. Our lawyers regularly appear on behalf of our clients in Supreme Court and are often able to resolve our client’s disputes by means of mediation and arbitration.

Terms and Conditions

Please note that as of January 31, 2023, we are excited to announce that McLarty Wolf Litigation Lawyers has joined Meridian Law Group. Please visit us at https://meridianlawgroup.ca/.

Visit Site

PRACTICE AREAS

  • Elder Abuse
    • Elder Financial Abuse
    • Misuse of Power Of Attorney
    • Committeeship
  • Estate Litigation
    • Wills Variation
    • Contested Wills
    • Contested Trusts
  • Contract Disputes
    • Breach of Contract
    • Business Disputes
    • Fraud
  • Real Estate Litigation
    • Land Ownership Disputes
    • Partition of Property
    • Construction

CONTACT US

Phone: 604-687-2277

Toll Free: 1-855-688-9542

Fax: 604-687-4158

#1401-808 Nelson Street
Vancouver, BC
V6Z 2H2

© Copyright 2023 - McLarty Wolf Law

TOP