Testamentary Capacity & How to Assess it

What is Testamentary Capacity & How to Assess it to Make a Will?

In estate litigation, the capacity of one individual to make a will is often a subject of dispute. Therefore, you should start working with an experienced lawyer to help you evaluate issues of capacity. If your loved one is deceased, your lawyer should evaluate whether you’re entitled to recovery of their assets and property or not and help you challenge provisions in your loved one’s will.

Did your loved one make a will, and you suspect they did not have the capacity to do so? Well, our personal injury lawyer Halifax will evaluate your loved one’s medical records to identify whether there are any grounds for challenging the testamentary capacity or not. He will also file a claim on your behalf and start the process of varying the will.

Elements of Testamentary Capacity

The Wills, Estate, and Succession Act provides that an individual who is at least 16 years old and mentally capable can make a legally valid will. However, the term “mentally capable” leaves loopholes for the grounds for challenging the testamentary capacity.

How Is Testamentary Capacity Determined?

How does the court assess capacity? Well, it evaluates the mental state of the person making the will and their mental state at the time of drafting and signing the will. Below are some of the key questions the court will seek to answer:

  • Did the testator have the mental capacity to understand the purpose of the will at the time?
  • Did the testator have the capacity to present clear decision making during the disposition of the estate?
  • Did the testator have the mental capacity to understand their obligations to make sufficient provisions for the spouse and children?
  • Did the testator have the mental capacity to understand what their estate entailed and its value?
  • Did the testator have the capacity to create a coherent estate plan?
  • If the testator deviated from this obligation, were they capable of understanding the effect of the disposition?

What are the Grounds for Challenging Testamentary Capacity?

For you to be able to challenge testamentary capacity, you must be able to prove that your loved one suffered from a defect or condition. According to our injury lawyer Halifax, these are some of the grounds for disputing your loved one’s will:

  • Dementia
  • Schizophrenia
  • Senility
  • Abuse of drugs & alcohol
  • Medications that may change a person’s mental state
  • Mental disorders that may affect a person’s judgment & decision making

Is It Possible for a Person Diagnosed with Dementia to Change Their Will?

Cases of an elderly person with dementia making or revising a will raise a lot of questions regarding the validity of a will. The court does not consider those with dementia to be incompetent but rather how dementia might have affected their testamentary capacity.

A person with dementia experiences periods of clarity, sound mind, and memory, and these may qualify them as capable of making a valid will. For you to have a case for variation of your loved one’s will, you have to prove that they were suffering from dementia at the time of drafting or signing the will.

Talk to Our Wills Variation Lawyers

It is important to know that the presence of mental disease, defect, or one or more of these conditions does not guarantee invalidation of your loved one’s will. In wills variation cases, many factors come to play including questions of undue influence where testamentary capacity can be disputed and third-party exploitation to benefit from the will or influence the disposition of the estate.

Our injury lawyer Halifax will present evidence of the issues that compromised the capacity of your loved one to make or amend the will including medical records, the legal validity of the will, or even witness statements from family and friends.


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