Quick answer: A dementia diagnosis does not mean a person cannot make a valid will. In British Columbia, testamentary capacity is judged by the Banks v. Goodfellow test and assessed at the time the will is made, not by a label. Capacity can fluctuate, and a person with dementia may have the understanding the law requires during a lucid period.
Can family members argue that an elderly relative with dementia lacked the mental capacity to change his will to make his younger female caregiver the only beneficiary?
In Elder Estate v. Bradshaw, 2015 BCSC 1266, the court considered that question.
Diagnosis of dementia, increasing dependency on caregiver
Mr. Elder, who was 80 when he died in 2011, never married and had no children. His original will, prepared in 1987, left his estate to his sister, and if she died before him, to her three sons (Mr. Elder’s nephews) in equal shares. In 2006, Kate O’Brien, became Mr. Elder’s housekeeper. He had several health conditions, and over time, Ms. O’Brien gradually became his caregiver. Ms. O’Brien was 25 years younger than Mr. Elder.
In 2008, Mr. Elder was diagnosed with dementia. He received treatment and was monitored by a Geriatric Assessment Team from that time on. His mental status remained relatively stable in the years until his death. In April 2011 Mr. Elder prepared a new will that left his entire estate to Ms. O’Brien if she survived him and, if not, to his nephews. Mr. Elder died suddenly in July 2011. The nephews, who had not seen their uncle in over 15 years, were suspicious of the circumstances which resulted in them being disinherited in favour of the younger housekeeper/caregiver. They challenged the validity of the new will prepared in 2011.
What the court decided
The court agreed that the diagnosis of dementia raised suspicions regarding Mr. Elder’s mental capacity to prepare the new will (known as “testamentary capacity” in estate litigation). However, after examining all of the circumstances, the court was satisfied that Mr. Elder understood the extent of the property he was disposing of by will and was capable of making financial decisions. The court was also satisfied that Ms. O’Brien did not pressure or influence Mr. Elder in any way in relation to the change in his will.
Facts important to the court decision
- There was ample evidence, including that of Mr. Elder’s home support worker, his neighbours, his financial service advisor, his realtor, his doctors, and his solicitor to establish that Mr. Elder was “with it” and had a clear understanding of what he wanted to do with his property. His mild-to-moderate dementia was relatively stable.
- Ms. O’Brien did not play any role in conveying Mr. Elder’s wishes to the solicitor, or in influencing him to have a new will prepared. Mr. Elder actually rejected her advice that he did not need to change his will. Although Ms. O’Brien arranged the appointment with a solicitor on Mr. Elder’s behalf, and attended with him while he initially provided his instructions, she was not aware of what Mr. Elder’s will instructions would be prior to the appointment. The solicitor was also careful to confirm Mr. Elder’s instructions in Ms. O’Brien’s absence.
- Ms. O’Brien had no special relationship of influence in the area of managing Mr. Elder’s affairs or giving him advice. Further, while Mr. Elder was becoming more dependent upon Ms. O’Brien as time passed, he was not completely dependent upon her. Institutional service providers and home support workers were routinely involved in his care.
- Ms. O’Brien’s relationship with Mr. Elder and the potential for undue influence was scrutinized frequently during his lifetime by his home support workers and doctors, and to a lesser extent, by Mr. Elder’s solicitor, realtor, and financial service advisor. All these witnesses were specifically looking for evidence of undue influence and saw none.
- Mr. Elder was estranged from his nephews, who were his only next-of-kin. Conversely, there was evidence that Ms. O’Brien’s relationship with Mr. Elder was one of sincere care and concern. In light of the quality of the respective relationships, Mr. Elder’s decision to leave his property to Ms. O’Brien instead of his nephews was not unreasonable.
Take home point regarding dementia and mental capacity
Dementia may be a red flag, as may be the decision to leave one’s estate to someone who is not next of kin. However, the issue of mental capacity (known as “testamentary capacity” in estate litigation) ultimately depends on a consideration of all of the facts and the circumstances surrounding the preparation of a will.
The legal test for testamentary capacity
Capacity to make a will is not measured by a diagnosis or an age. The test comes from an old English case, Banks v. Goodfellow (1870), that courts in British Columbia still apply. To have testamentary capacity, the will-maker must understand the nature of the act of making a will and its effects; understand the extent of the property they are giving away; and understand the claims of the people who might expect to benefit — the family and dependants a reasonable person would consider. On top of that, no disorder of the mind may poison their affections or distort their sense of those claims.
Why a dementia diagnosis does not settle the question
Dementia is a red flag, not an answer. Capacity is assessed at the specific time the will was made, and it can fluctuate — a person may lack capacity on many days yet have it during a lucid interval. That is why, in the case above, evidence from the people around the will-maker day to day mattered more than the diagnosis itself: the court could see that his understanding was intact when he gave instructions and signed. The reverse is also true. A person with no diagnosis can lack capacity, and a formal label proves far less than a careful look at what the person actually understood at the moment that counts.
Suspicious circumstances and who has to prove what
Normally a will that looks properly signed is presumed to have been made with knowledge and approval. That presumption can be spent. Under Vout v. Hay, [1995] 2 SCR 876, where suspicious circumstances surround the making of a will, the person putting the will forward must prove capacity, knowledge, and approval on the balance of probabilities. Circumstances that draw suspicion include a major change late in life, a new beneficiary who was involved in arranging the will, and a will made when the will-maker was frail or dependent. Suspicion does not void a will; it shifts the work of proving it onto the person who benefits.
Capacity and undue influence are separate questions
A will can be challenged on capacity, on undue influence, or on both, and they are not the same complaint. Capacity asks whether the will-maker understood what they were doing. Undue influence asks whether the will reflected their own choice or someone else’s pressure. In the case above the nephews raised both, and both failed — the caregiver was found to have had the will-maker’s trust without controlling his decisions, and there was no evidence she pressured him. A challenge can lose on one ground and still be worth examining on the other.
Protecting a will when capacity might be questioned
If a will departs from what family expects, or is made by someone whose capacity could later be doubted, a few steps make it far more defensible. Have a capacity assessment done close to the date the will is signed. Have the drafting lawyer meet the will-maker alone and record their instructions and reasons in their own words. Keep the person who benefits out of the room when instructions are given. As the case above shows, contemporaneous evidence from doctors, the lawyer, and others who saw the will-maker is what carries a will through a challenge.
Frequently asked questions
Can a person with dementia make a valid will in BC?
Yes, if they have testamentary capacity at the time the will is made. Dementia is a warning sign, not an automatic bar. Capacity can fluctuate, and a person may have the understanding the law requires during a lucid period. What matters is what the will-maker actually understood when they gave instructions and signed.
What is the test for testamentary capacity?
The test comes from Banks v. Goodfellow (1870). The will-maker must understand the nature and effect of making a will, the extent of their property, and the claims of those who might expect to benefit, and no disorder of the mind may distort those considerations. Courts in British Columbia still apply this test.
What are suspicious circumstances in a will dispute?
They are facts that cast doubt on whether the will-maker knew and approved of the will — for example, a major late-life change, a new beneficiary who helped arrange the will, or a will made when the will-maker was frail or dependent. Under Vout v. Hay, suspicious circumstances require the person putting the will forward to prove capacity, knowledge, and approval.
Is leaving an estate to a caregiver enough to invalidate a will?
No. Leaving an estate to a caregiver instead of family may draw scrutiny, but it does not by itself make a will invalid. If the will-maker had capacity and was not pressured, the will can stand — as it did in the case discussed here, where the court found genuine care rather than influence.
How can I make a will harder to challenge on capacity?
Have a capacity assessment done close to the signing date, have the drafting lawyer meet you alone and record your instructions and reasons, and keep anyone who benefits out of the room. Contemporaneous evidence from doctors and the lawyer is what carries a will through a later challenge.
Disclaimer: The information on this page is general legal information about British Columbia law, not legal advice for any specific situation. Reading this page does not create a solicitor-client relationship. BC law changes, and the law and procedure that apply to any particular case depend on facts not covered here. For advice on your own circumstances, speak with a qualified British Columbia estate lawyer directly. Past results and illustrative scenarios do not guarantee similar outcomes in any specific case.