Issues of testamentary capacity and undue influence frequently arise when a new will is made under ostensibly suspicious circumstances: late in a testator’s life, while in the throes of terminal illness and resultant fluctuating capacity, ushering in changes to the estate plan to include new beneficiaries.
Such issues were recently raised in Becker v. Becker, 2016 BCSC 487 by beneficiaries who would still benefit under the new will, albeit in considerably smaller amounts than if an earlier will governed. The application to prove the new will in solemn form was allowed by Smith J., who affirmed that timing of any fluctuations in capacity is critical: in general, the first relevant time that a testator must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times.
Key Facts: Fluctuating Capacity and Changes to Estate Plan Arouse Suspicion
Ann Andrews, having no biological children of her own, made a will in 2009 in which she granted Mr. Becker, her common-law partner of 27 years, a life estate in her condominium, with the residue of her estate to her six godchildren (the “2009 Will”). In late December 2011 Ms. Andrews was hospitalized with what proved to be an inoperable brain tumour. On January 13, 2012, while still hospitalized, Ms. Andrews executed a new will in which she gave Mr. Becker a life estate in her condominium plus all benefits payable in the event of her death, and left her six godchildren as residuary beneficiaries. Ms. Andrews was noted to be very emotional and somewhat confused when providing the initial instructions to the lawyer who prepared the new will. On January 18, 2012, at Mr. Becker’s prompting, Ms. Andrews replaced the new will with another will on the same terms but which also included Mr. Becker’s four grandchildren, thereby increasing the number of residuary beneficiaries from six to ten. Ms. Andrews died on February 10, 2012 at the age of 73. Mr. Becker died in 2014.
The validity of both new wills was challenged by Ms. Andrews’ six godchildren on the basis that Ms. Andrews lacked testamentary capacity and that the new wills were the result of undue influence on the part of Mr. Becker. Their challenge was unsuccessful.
Test for Testamentary Capacity and Doctrine of Suspicious Circumstances
The classic test for testamentary capacity, referred to by Smith J. as “the Banks factors”, comes from Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 567. In a previous post, we discussed the Banks factors, the burden of proving testamentary capacity, and the rebuttable presumption of capacity established in Vout v. Hay,  2 S.C.R. 876.
The presumption of capacity may be rebutted by evidence of well-grounded suspicions, known as “suspicious circumstances”, relating to one or more of the following:
(1) surrounding the preparation of the will;
(2) tending to call into question the capacity of the testator; or
(3) tending to show that the free will of the testator was overborne by acts of coercion or fraud: Laszlo v. Lawton, 2013 BCSC 305 at para. 202.
Where there is evidence of a “specific and focused suspicion” that the testator may not have known and approved of the contents of the will, the presumption is spent and the burden reverts to the propounder to prove testamentary capacity on the balance of probabilities.
At the initial meeting at the hospital on January 10, 2012, the lawyer who prepared the new wills noted that Ms. Andrews was very emotional, somewhat confused, and displayed a faulty memory. Smith J. agreed with the godchildren that Ms. Andrews’ fluctuating capacity on January 10, 2012, coupled with her ongoing physical deterioration, constituted suspicious circumstances depriving the will’s propounder of the benefit of the presumption.
Fluctuating Capacity: Timing is Key in Relation to Testamentary Capacity
Smith J. next cited with approval the following passage from Laszlo v. Lawton on question of timing:
 Timing is key. In general, the first relevant time that testators must have testamentary capacity is when they give will instructions; the second is when the will is executed. In recognition of the fact that faltering mental capacity is prone to fluctuate, the authorities permit variation of the degree of capacity required at these pivotal times. For example, the will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions […].
 The diminishment of mental capacity, particularly in the elderly, will frequently emerge and worsen over time. In light of that, evidence of symptoms exhibited by a testatrix both before and after the making of the will may support an inference relevant to the determination of the presence or absence of testamentary capacity at the material time: […].
[Emphasis in original; citations removed]
While there was evidence that Ms. Andrews was confused and emotional at the first meeting with the lawyer on January 10, 2012, Ms. Andrews showed a strong comprehension of the Banks factors at subsequent meetings on January 13, 17, and 18, 2012. According to the lawyer, on those days Ms. Andrews was brighter and clearer, less emotional, and could converse easily. Ms. Andrews was clear on the terms of the will and approved them. Per Smith J.:
 The requirement is not a perfect understanding of the value of the estate and every detail of the potential beneficiaries, but the ability to turn one’s mind to those elements in a general way. Ms. Andrews, it appears, could do that.
Smith J. found that Ms. Andrews’ presentation at the January 10, 2012 meeting was likely more attributable to Ms. Andrews’ physical decline and emotional state than to cognitive decline. Smith J. emphasized that it is important not to confuse a disturbed emotional state, which is to be expected in a person who has recently been told that death is imminent, with the question of testamentary capacity.
Suggestion or Persuasion Does Not Necessarily Amount to Undue Influence
Smith J. found it quite likely that the change to include the grandchildren as additional beneficiaries came about at the suggestion or prompting of Mr. Becker, but the lawyer was alive to that issue and determined it to be a change that Ms. Andrews wanted to make. She made that determination in Mr. Becker’s absence. Nothing in the case law prevents suggestions or persuasion by a spouse, provided that there is no coercion and the testator remains free to make his or her own decision. The evidence in this case not only fell far short of the test for undue influence referred to by Dardi J. in Leung v. Chang, 2013 BCSC 976, it would have been sufficient to prove the absence of undue influence even if s. 52 of the new WESA applied.
Take Home Point: Fluctuating Capacity Not Fatal to Establishing Testamentary Capacity
Fluctuations in capacity may constitute suspicious circumstances, but are not necessarily fatal to establishing testamentary capacity. Timing is key. The will of a testator who is competent to give instructions, but has lost capacity when the will is executed, may be valid so long as, at the time of execution, the testator was capable of comprehending that she was executing a will drawn in accordance with her previous instructions. Similarly, the will of a testator who is emotional and confused when providing initial instructions may be valid so long as, at the time of execution, the testator is clear on the terms of the will and approves them.