Who can make a Will?

In Ontario, under the Succession Law Reform Act and the Substitute Decisions Act (SDA), adults are presumed capable of making a Will. To make a legal Will, you must be 18 years of age or older, or if under 18 you must be:

• married,
• contemplating marriage (but the Will is not valid until the marriage takes place),
• a member of the Canadian Armed Forces, or
• a sailor at sea.

A person must be also mentally competent, meaning they have the mental capacity to make a Will. Generally, a person is mentally competent if they can understand the purpose and effects of making a Will. Under the SDA, everyone who is 16 or older is presumed capable of making decisions about his or her personal care and everyone 18 or older is presumed capable of making decisions about his or her property.

What are capacity claims?

A common estate litigation claim involves family members or others close to the deceased, such as a common-law spouse, who feel they were wrongly treated or completely left out of a Will because the deceased may not have been mentally capable to make certain decisions at the time the Will was written.

This most often happens when someone executes a Will late in life, possibly while suffering from some form of mental impairment, such as dementia.

What decisions could capacity affect?

Estate planning involves making a number of important decisions, and an individual’s mental capacity can affect the legal consequences of all of them. For example, did the deceased have capacity to:

• make a Will?
• manage property?
• manage personal care?
• marry?
• appoint a Power of Attorney?
• decide on medical care?

What will a court look at to determine capacity?

Whether someone has mental capacity to make decisions depends on the type of decision being made. For example, an individual may have the capacity to marry but they may not have the capacity to make a Will.

Depending on the subject of the claim, different things will have to be proved:

1. Capacity to make a Power of Attorney or a Will

To prove a person had capacity to make a Power of Attorney or a Will, known as testamentary capacity, it must be proven that the person was of sound mind, memory and understanding at the time the Will was written.

To prove testamentary capacity, the following questions are usually asked:

(i) Did the person understand what he or she was doing along with the “nature and quality of the act”?

and

(ii) Was the person able to understand and recollect:

• what property he or she had,
• the people that would usually be expected to benefit (such as a child or spouse),
• what was being given to each beneficiary, and
• the claims of others who were being excluded.

2. Capacity to manage property

To prove a person had capacity to manage property, that person must have:

• understood the information that was relevant in making a decision in the management of their property; and had
• the ability to understand the reasonably foreseeable consequences (predictable result) of their decision or of not making a decision.

3. Capacity to manage personal and medical care

To prove someone had capacity to manage personal and medical care, the person must have had the ability to understand:

• relevant information when making a decision about health care, nutrition, shelter, clothing, hygiene and safety; and
• the reasonably foreseeable consequences (predictable result) of their decision or of not making a decision.

4. Capacity to marry

The capacity to marry is generally considered comparable to the capacity to enter into any binding contract. To ensure that the parties to the contract can be held accountable under the agreement, the parties must be of sound mind, meaning that they are able to understand the full meaning and effect of the contract that they are agreeing to. A contract made by someone who is determined to be mentally incapable of entering into the agreement, generally, will not be obligated under the agreement. Mental incapacity can arise for different reasons, such as due to a disability or if the person was intoxicated.

What if the court decides the testator did not have capacity?

If the Court decides that the person who made the Will (testator) did not have capacity to make the Will, then the Will is deemed (considered to be) invalid. In addition, depending on the situation, lack of capacity may result in many other things happening, such as:

• A previous Will might have legal effect.

• If the person is still alive and no longer has capacity to manage their property, the person who was named as the attorney in a Power of Attorney might take charge of the finances and property.

• If there was a Will, and the deceased person was married and it is determined that he or she had the capacity to marry, then the new marriage might revoke all prior Wills.

• If deceased person died without a valid Will, and was married and it is determined that he or she had the capacity to marry, the spouse may receive a preferential share of the estate as well as part of the distributive share.

Estate Bonds

Estate bonds protect any party with a legal interest in the estate, including:

• Named or entitled beneficiaries
• Estate creditors
• Minors and the incapacitated.

An estate bond guarantees the Beneficiaries will receive their share of the estate and protects Creditors of the estate. In addition, estate bonds reduce claims and court time, as well as assuring that the executor/trustee will fulfill their duties and obligations. For more information about estate bonds, or to purchase a bond, contact Ai Surety Bonding .

Getting the legal help you need

Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, or for help in filing a capacity claim, you should consult a lawyer.

								
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