Testamentary Capacity

Was The Deceased Aware What He or She Was Doing?

Testamentary capacity is not the same as the capacity to manage one’s own property and/or self. Testamentary capacity refers to a set of criteria in relation to the distribution of a testator’s property, in which that testator has the capacity to understand and appreciate. It has also been established that while testamentary capacity is a legal question and not a medical one, a medical opinion, although valuable and relevant, is not determinative of testamentary capacity.

Nykoryak v Anderson, 2017 BCSC 1800

In this case the testator, Mr. Hlynsky, had left three surviving children: Bill, Natalie and Stephan. The plaintiffs in this action were Bill and his daughter Mariya (the deceased’s granddaughter). In a previous Will dated February 17, 2006, the testator had instructed that the residue of his estate be divided between his son, Stephan, and his granddaughter, Mariya.

Mr. Hlynsky later spoke with his long-time solicitor, Mr. Helm, to prepare a new Will in which Stephan and Natalie were included and Bill was not. Both Stephan and Natalie were present when the testator gave Mr. Helm these instructions. They were initially present for the purpose of assisting their father due to his significant hearing impairment in his right ear, however a discussion developed between the children and Mr. Hlynsky regarding the residue of his estate. Accordingly, Mr. Helm referred Mr. Hlynsky to another lawyer, Mr. Sigalet, due to concern that the 

children’s help could be perceived as undue influence. The sequence of these events and Mr. Sigalet’s assistance in the preparation and execution of the testator’s most current Will dated January 13, 2015 was set out in an affidavit sworn by Mr. Sigalet. He did not find testamentary capacity to be of issue and he confirmed that no one else was present during his meetings with Mr. Hlynsky.

Further evidence was provided by Mr. Hlynsky’s long-time physician, Dr. Long. He was of the opinion that while the testator had some underlying cognitive issues, including short-term memory loss, occasional confusion and some paranoia, prior to and at the time he executed his January 13, 2015 Will, he was nevertheless “aware of the nature and effect of a will, the general extent of his assets, the nature of a will regarding who would benefit from his will, and was for the most part free of thought disturbance that would affect his judgment in this regard” (at p. 5).

Requirements for Testamentary Capacity

As established in Palahnuk v. Palahnuk Estate, [2006] OJ No 5304, the requirements for a testator to have a “sound disposing mind” in order to make a valid will include the following:

• the testator must understand the nature and effect of a will;

• the testator must recollect the nature and extent of his or her property;

• the testator must understand the extent of what he or she is giving under the will;

• the testator must remember the persons he or she might be expected to benefit under his or her will; and

• the testator, where applicable, must understand the nature of the claims that may be made by a person he or she is excluding from the will.

The Law

[17] The test for testamentary capacity was recently commented upon by this court in Bull Estate v Bull, 2015 BCSC 136, at paras. 114 to 117:

[114] The test for testamentary capacity is not overly onerous. Sufficient mental capacity to make a will may exist despite the presence of cognitive deterioration, and the testator may have sufficient mental capacity even if his/her ability to manage other aspects of his/her affairs is impaired.

[115] Simply having an imperfect or impaired memory does not in of itself absent testamentary capacity unless it is so great as to leave no disposing memory: Banks v. Goodfellow (1870), L.R. 5 Q.B. 549. A disposing mind and memory is “one able to comprehend, of its own initiative and volition, the essential elements of will making, property, objects, just claims to consideration, revoking of existing dispositions and the like …” (Moore v. Drummond, 2012 BCSC 1702 at para. 34).

[116] The testator should have an appreciation of the claims of the persons who are natural objects of his/her estate and the extent of his/her property of which he/she is disposing: Allart Estate v. Allart, 2014 BCSC 2211 at para. 30; Leung at para. 27 and Laszlo v. Lawton, 2013 BCSC 305 at para. 158.

[117] Because testamentary capacity is a legal question and not a medical question, a medical opinion, although valuable and relevant, is not determinative of testamentary capacity: Leung at para. 62 and Laszlo at para. 190.

[18] The Ontario courts agree. In the very recent case of Birtzu v McCron, 2017 ONSC 1420, Justice Bloom, at the beginning of para. 40, said:

[40] Justice Corbett in Johnson v. Huchkewich, [2010] O.J. No. 4586 (Sup Ct) at paras. 34, 35, and 46 elaborated on the effect of mental disorder on testamentary capacity:
[34] The applicant notes that testamentary capacity is not the same thing as the capacity to manage one’s property or the capacity to confer a power of attorney. I agree. This does not mean the test is “higher” for testamentary capacity; rather, it is different…

[35] Isolated memory or other cognitive deficits do not establish lack of testamentary capacity:

Such things as imperfect memory, inability to recollect names and even extreme imbecility, do not necessarily deprive a person of testamentary capacity. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property he was bequeathing, the manner of distributing it and the objects of his or her bounty.

[46] Care must be taken in reading the physicians’ clinical notes or in interpreting their diagnoses. Diagnosing someone as having “dementia” does not mean the person is “demented”. Diagnosing someone as having Alzheimer’s does not mean the person lacks capacity (though it may foretell a loss of capacity if the disease progresses as expected). To leap from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning. I reject this line of argument.

The court determined that the issue to be decided was not whether Mr. Hlynsky suffered from cognitive impairment when the Will was executed, but rather, whether, despite the cognitive impairment, he was able to understand and appreciate the list of requirements for testamentary capacity. The court concluded that Mr. Hlynsky could not have had the conversation and discussion he had with Mr. Sigalet, that Mr. Sigalet deposed took place, if he did not meet the required criteria for testamentary capacity. Therefore the January 13, 2015 Will was found to be valid.

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