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Court Affirms Test for Testamentary Capacity in BC Will Challenge


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  • Court Affirms Test for Testamentary Capacity in BC Will Challenge

In a 2017 BC will challenge, the court affirmed testamentary capacity is not the same thing as the capacity to manage one’s property or the capacity to confer a power of attorney, and as such, a will-maker may have sufficient mental capacity even if his or her ability to manage other aspects of his or her affairs is impaired. In other words, a will-maker may have a “sound disposing mind” to make a valid BC will despite the presence of cognitive deterioration or isolated memory deficits.

Background facts in BC will challenge

In Nykoryak v. Anderson, 2017 BCSC 1800, the son and granddaughter of the deceased commenced a BC will challenge, seeking an order that the deceased’s will was invalid due to lack of testamentary capacity, and, in the alternative, if the will was found to be valid, an order that it be varied to include them as beneficiaries. The deceased, Ivan, had three children, the first of whom was a son named Bill who was born out of wedlock. In 1999, at the age of 77, Ivan moved from the Ukraine to BC. From that point on, Ivan’s daughter Natalie took care of him. In 2006, Ivan made a will which provided that the residue of his estate be divided between two people: Ivan’s son Stephan and Bill’s daughter Mariya. Natalie and Bill were not named in Ivan’s 2006 will.

Basis of BC will challenge

In January 2015 at the age of 93, Ivan executed a new will which left the residue of his estate to Natalie and Stephan (to the exclusion of Bill and Bill’s daughter Mariya). Ivan died shortly thereafter on March 24, 2015. Ivan had considerable hearing difficulty and underlying cognitive issues including some short-term memory loss and occasional confusion at the time he executed his 2015 will. Steve and Natalie were present for some of the meeting at which Ivan provided instructions to his lawyer for the preparation of his new will. To avoid perceived undue influence, Ivan’s lawyer required him to get independent legal advice with no one else present. When Bill and his daughter later challenged the validity of Ivan’s will, the court considered affidavit evidence from that lawyer, which indicated that Ivan understood the purpose of receiving independent legal advice and throughout both the meeting to provide instructions and the meeting to execute the 2015 will, Ivan demonstrated that he had the knowledge and understanding of the essential elements of will making, the extent of the property of which he was disposing, and an appreciation of the claims of the persons who were natural objects of his estate.

Test for testamentary capacity to make a valid BC will

When the validity of a BC will is challenged on the basis of capacity, the issue to be decided is whether the deceased was able to:

  • understand the nature and effect of a will;
  • understand the nature of effect of the deceased’s property;
  • understand the extent of what was being bequeathed under the will;
  • remember the persons who might be expected to benefit under the will; and
  • understand the nature of the claims that may be made by a person who is excluded from the will.

Mr. Justice G.C. Weatherill in Nykoryak v. Anderson concluded that the last will and testament of the deceased was valid, despite the presence of cognitive deterioration. Ivan could not have had the conversation and discussion that the lawyer deposed took place if he did not meet the foregoing test of testamentary capacity.

Medical opinion valuable but not necessary

Mr. Justice G.C. Weatherill also considered an expert report from Ivan’s long-time physician, in which the doctor opined that while Ivan had some underlying cognitive issues at the time he executed his will, he was nevertheless probably aware of what he was doing at the time. The court considered the doctor’s report, but was careful to note that testamentary capacity is a legal question and not a medical question; as such, a medical opinion, although valuable and relevant, is not determinative of testamentary capacity. The disappointed beneficiaries who challenged the will sought an order to obtain additional medical and hospital records on the basis that they may disclose further evidence relating to Ivan’s testamentary capacity at the time he signed the 2015 will. The court declined to make the order, being of the view that it was very unlikely that any further medical records would provide additional evidence of cognitive impairment that would will diminish the effect of the lawyer’s affidavit evidence.

Take home point on BC will challenge based on capacity

Sufficient mental capacity to make a will may exist despite the presence of cognitive deterioration, and the testator may have sufficient testamentary capacity even if his or her ability to manage other aspects of his or her affairs is impaired.

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