Family, Estates & Trusts 



What is Lack of Testamentary Capacity in BC?

Testamentary capacity is an essential element when it comes to will-making. A Will can be declared invalid if the will maker didn’t have the necessary capacity to make a testamentary document. 

That being said, a person’s Last Will and Testament can be valid despite the presence of cognitive deterioration or memory issues. Despite commonly held assumptions, a diagnosis of dementia or Alzheimer’s doesn’t automatically mean a person can’t make a valid Will

The issue of mental capacity is complex. There are estate planning strategies that can be used to mitigate capacity concerns when a Will is made. There are also options for surviving family members who suspect that a Will was made without necessary testamentary capacity. Let’s have a deeper look at the issue of mental capacity to make a Will in British Columbia.

What is “testamentary capacity,” and why is it important?

What is "testamentary capacity," and why is it important?

Testamentary capacity is a person’s ability or inability to make a Will. It can’t be a valid Will if the will maker doesn’t meet the legal threshold to create a Will in the first place, even if the Will meets the other requisite formalities. If a Will is declared invalid because of lack of appropriate capacity, the deceased’s next most recent valid Will (if one exists) governs how the deceased’s estate is distributed. 

It’s important to emphasize that testamentary capacity is not the same thing as the capacity to manage one’s property or the capacity to grant a power of attorney. A person can have sufficient mental capacity to make a Will even if his or her ability to manage other affairs is impaired. An individual may have a “sound disposing mind” to make a valid BC Will despite the presence of cognitive deterioration or isolated memory deficits. 

How is testamentary capacity determined in BC?

Legal test to assess testamentary capacity

Legal test to assess testamentary capacity

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

  • Understand the nature and effect of a Will. Did the will maker understand what was being signed and its consequences? 
  • Understand the extent of what was being bequeathed under the Will. Did the will maker know the size and composition of his or her estate or the extent of his or her property?
  • Remember the persons who might be expected to benefit under the Will. Could the will maker identify who would expect to be a beneficiary of their estate? Did the will maker know his or her legal and moral obligations to family members, and appreciate the nature of claims that may be made against the deceased’s estate by persons excluded from the Will?
  • Understand the impact of the distribution of the assets or the estate. Was the will maker able to appreciate these factors in relation to each other, and form an orderly desire as to the disposition of his or her property?

Whether a will maker can understand and keep these things in mind while making decisions and giving instructions for their Will is the threshold test to assess testamentary capacity. The assessment is a highly fact-specific inquiry.

Timing is important

Timing is important

Mental capacity can fluctuate. For instance, a person with dementia or Alzheimer’s can be lucid and competent one day, then confused and forgetful another day.

In recognition of the fact that mental capacity is prone to fluctuation, the law allows some variation in the degree of capacity required at two pivotal times: first, when the instructions to make the Will are given, and second, when the Will is executed. Because of that: 

  • A person may be competent to give instructions, but then lack capacity when the Will is executed. That Will may be valid if the person was capable of comprehending that he or she was executing a Will drawn in accordance with their previous instructions. 
  • A Will may still be valid if a person was confused or emotional when providing initial instructions, but then was clear on the terms of the Will and approved those terms at the time the document is executed. 

The outcome will depend on the specific circumstances of each case. 

What are the signs that someone might lack testamentary capacity?

What are the signs that someone might lack testamentary capacity?

There is no one thing that signals lack of testamentary capacity, but there are many red flags. For example: 

  • Memory loss, confusion, and difficulty communicating.
  • Delusions or erratic/irrational behaviour. 
  • Use of drugs (prescription or illicit) or alcohol that may impair one’s mental state. 
  • A new Will that departs significantly from the person’s previous Will. 
  • Unusual wishes or bequests. 
  • Changes to a Will made late in life. 
  • A Will made on a rush basis. 
  • The presence of a medical condition or mental illness that may influence or impair cognition, such as schizophrenia, dementia, and Alzheimer’s. 

See below for more on how suspicious circumstances surrounding the making of the Will factor in when a Will is challenged. 

The role of medical evidence

While a medical condition or mental illness can affect testamentary capacity, testamentary capacity is a legal test, not a medical test. Medical evidence and medical opinion, although valuable and relevant, are not determinative of testamentary capacity.

Medical records and diagnoses are important if a Will is challenged, but medical evidence must be weighed against the observations of people who were present at the time the Will was signed, testimony of friends and family who spent time with the will maker at the relevant time, and evidence from the estate planning lawyer who took the instructions and saw to the signing of the Will. 

Can a Will be contested on the grounds of lack of testamentary capacity?

Can a Will be contested on the grounds of lack of testamentary capacity?

Yes. A Will can be contested on the grounds of lack of testamentary capacity by bringing an application in the Supreme Court of British Columbia. If you are considering contesting a Will due to lack of capacity or wish to defend against allegations of lack of capacity, you must be aware of the rebuttable presumption of validity and how that presumption factors into the case.

Rebuttable presumption that a Will is valid

When a Will is duly executed in accordance with the requisite statutory formalities after being read over to or by a will maker who appeared to understand it, it gives rise to a presumption that favours the propounder of the Will (i.e., the person who seeks to uphold the Will as valid). In that situation, it’s presumed that the will maker possessed the requisite knowledge and approval of the contents of the Will, and testamentary capacity. 

The presumption is rebuttable. The person challenging the Will’s validity can rebut the presumption by providing evidence of well-grounded suspicions. In a recent BC Supreme Court case, Jung Estate v. Jung Estate, 2022 BCSC 1298,  the court discussed what amounts to “well-grounded suspicions” (at para. 40): 

Suspicious circumstances must raise what has been described as a “specific and focused suspicion”; a “general miasma of suspicion that something unsavoury may have occurred” is not sufficient:  Leung at para. 32; citing Clark v. Nash (1989), 61 D.L.R. (4th) 409 at 425 (B.C.C.A.). Such suspicions must be “well grounded” and will generally relate to circumstances (1) surrounding the preparation and execution of the will, (2) calling into question the capacity of the will-maker, or (3) tending to show that the free will of the will-maker was overborne by acts of coercion or fraud: Vout at para. 25Allart Estate at para. 32. There is no checklist of suspicious circumstances, but one commonly occurring theme is where a beneficiary is instrumental in the preparation of the will (especially where they stand in a fiduciary position to the testator): Laszlo at para. 207.

Where there is reliable and credible evidence of a “specific and focused suspicion” that the will maker may not have known and approved of the contents of the Will, the person seeking to uphold the Will loses the benefit of the presumption of validity. The burden of proof falls back to the propounder of the Will to prove on a balance of probabilities that the will maker had the capacity to understand the extent of his or her estate, who the potential beneficiaries were, and how the estate may be apportioned between them.

Intersection of undue influence and testamentary capacity

In the passage from Jung Estate cited above, the court stated that the presumption of validity may be rebutted by evidence of well-grounded suspicions relating to one or more of the following circumstances:

  • surrounding the preparation of the Will;
  • tending to call into question the capacity of the Will maker; or
  • tending to show that Will maker’s free will was overborne by acts of coercion or fraud.

The third point is key here. It’s common for an undue influence claim to be made alongside a claim that the will maker lacked testamentary capacity, but the test for undue influence is different. 

To invalidate a Will on the grounds of undue influence, the party challenging the Will must prove that the influence exerted against the person making the Will amounted to coercion, such that the Will did not reflect their true intentions and was not the product of their own act. The undue influence must constitute coercion which could not be resisted by the person making the Will and which destroyed his or her free agency.

It’s easy to see how these types of will challenges intersect. Elderly people and people with diminished mental capacity are more likely to be victims of undue influence. For example, a caretaker may use threats or other abusive tactics to convince an elderly person suffering from dementia or delusions to change his or her estate plan in the caretaker’s favour. Even if the court concludes that the elderly person had the requisite mental capacity to make the Will in question, the Will may be invalidated if it is proven that the person under influence acted differently than he or she would have if their decisions had been made independently. 

Reach out for legal advice on testamentary capacity

Onyx Law Group is dedicated to helping clients with all types of estate matters. Our estate planning lawyers can guide you or your loved one through the process of making a Will if there are capacity concerns. 

We also have the expertise to assist clients with complex estate challenges. Our estate litigators have extensive experience with both advancing and defending claims of lack of testamentary capacity. 

We welcome you to contact Onyx Law Group today to discuss your needs and learn more about your legal options. 

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Onyx Law Group represents clients in family law, estate and trust litigation, estate planning and probate matters. Consult with our experienced team at 
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