Testamentary Capacity

Question 1

Age requirement to make a will in NB

Answer 1

Will made by person under 19 not valid unless exception applies

Question 2

What are the exceptions to the age requirement?

Answer 2

• Person is or has been married
• Person is a member of the Canadian Forces
• Marinor or seaman (navy)

Question 3

Why is marriage an exception to age?

Answer 3

Because of intestacy, if you have a spouse it all goes to them and if you want to avoid this need a will.

Question 4

What is one very basic requirement for probate?

Answer 4

Knowledge and approval of will and its contents (know its a will and approve of what it does)

Question 5

Presumption of knowledge if they…

Answer 5

Had it read to them, appeared to understand it and then properly executed it (complied with formalities)

Question 6

When executor makes an application for probate, they normally must establish a number of matters, these include proof that:

Answer 6

1. The testator satisfied the statutory age requirement to make a will
2. The testator knew and understood the contents
3. The testator had testamentary capacity
4. The will was executed in accordance w/ the statutory requirements/formalities of a will and was not revoked
5. The will was not affected by mistake
6. No undue influence or fraud

Question 7

Calderaro v Meyer

Answer 7

Will wasn’t probated b/c Court found T had no capacity (couldn’t communicate and didn’t squeeze mothers hand), and couldn’t have approved of the contents of the will.

Question 8

Russel v Fraser

Answer 8

If the testator failed to understand the entire will, it cannot be probated. However, if the testator didn’t understand one clause, or made a mistake about only part, the rest of the will may be probated.

Question 9

Onus for knowledge?

Answer 9

• On person trying to disprove presumption of knowledge.

- If no evidence person had will read to them onus on person trying to probate, no presumption

Question 10

Banks v Goodfellow

Answer 10

Set out 4 part test for testamentary capacity:

1) Understand nature and effect of will
2) Understand nature and extent of property they are disposing of
3) Be aware of any claims to which he ought to give effect (moral obligations
4) Have no disorder of the mind that shall poison the affections, pervert his sense of right, or pervert his natural faculties. No insane delusions shall influence his will.

Question 11

When is insane delusions considered influencing a will?

Answer 11

Disposal of property which had they been of sound mind would not have been made

Question 12

Test for Capacity which is Diminished through Age, Disease, illness

Answer 12

The mental power of the testator may be reduced below the ordinary standard, but if there is sufficient intelligence to understand the first test, capacity remains.

Question 13

General lack of capacity/ insanity

Answer 13

mental disability, or disability as a result of age or disease.

Question 14

Insane delusions

Answer 14

Could be temporary boughs of general insanity, sometimes you have capacity sometimes you don’t

Question 15

Intoxication

Answer 15

Self induced testamentary incapacity

Question 16

What if someone is suffering from insane delusions but makes a rational will

Answer 16

They will allow it to be valid, rational will preferable over intestacy

Question 17

Leger v Poirier

Answer 17

You must be able to have a fully informed and engaged conversation about the will, more than just yes or no. This is the bare minimum of the test of testamentary capacity. A disposing mind and memory is whether one can comprehend, of their own initiative and volition, the essential elements of will-making, property, object, just claims to consideration, revocation of existing dispositions, and the like.

Question 18

Re Davis

Answer 18

Facts: lady had health problems and underwent a complete personality change ran off with man in a shack

Ratio:

• Even if doctor/lawyer says capable, ample evidence from lay witnesses can still prove incapable
• A court will look to previous wills to if the testator has radically changed their position, it may show that something is wrong.

Question 19

Vout v Hay

Answer 19

Facts: H (81) had a relationship with V (29)

Ratio:
-When a lawyer fails to consider suspicious circumstances surrounding the creation of a will they can be held liable, even if a will is found by the courts to be valid
UPDATED TEST FROM BANKS v GOODFELLOW
Testamentary Capacity– Sound mind, memory and understanding when the will was made, in the sense that s/he at the time the will was made:
o Understands the nature and effect of a will
o Recollects the nature and extent of their property
o Understands the extent of what s/he is giving away, in regards to property
o Remembers the people who might be expected to benefit under their will
o Understands the nature of the claims that may be made by people that s/he is excluding under the will

Question 20

What should lawyer do if they have doubts about capacity?

Answer 20

Take testator through all steps and if any doubts order assessment

Question 21

General insanity vs insane delusions

Answer 21

General insanity=determinative of incapacity

Insane delusions= not determinative

Question 22

How to defeat a will with insane delusion?

Answer 22

Show a link between the delusions and the will– will is a product of insane delusions

Question 23

Insane Delusions

Answer 23

belief in a state of facts which no rational person would believe

Question 24

Insane delusions not automatically incapacity, have to conclude:

Answer 24

A) Testator experiencing insane delusions

B) Delusions affected testators capacity to make a will

Question 25

O’Neil v Royal Trust

Answer 25

Facts: changed will but then felt guilty not following dead husbands wishes so changed it back. Year later suffered delusions.

Ratio: Thus, the medical evidence showed no sign of lack of testamentary capacity in relation to her delusions. Delusions not the reason she changed it.

Question 26

Royal Trust Co v Saunders

Answer 26

Courts are no longer so quick to decide that a testator lacked capacity if they left a child or spouse out from the will, even if they have mental illness issues. He gave reasons for taking them out, doesn’t matter how petty.

Question 27

Sharp v Adams

Answer 27

Facts: had doctors, lawyers, and other witnesses saying he was capable.

Ratio:

• found incapable because no reason the daughters would be completely disinherited they had a good relationship.
• Demonstrates extreme the moral issue can go.
• If someone has possible mental issue and no reason to leave people off they will likely be found not to have capacity

Question 28

If someone has mental issue and disinherits people without reason vs if they don’t have issue

Answer 28

if they have a mental health issue even if they have been found by others to have capacity likely will find temporary insanity. IF someone doesn’t have mental issues and does this without reason likely will be found capable.

Question 29

Pike v Stone

Answer 29

Client had schizophrenia, can make a valid will when you have it just have people make sure you understand everything from the test.

Question 30

Death by suicide

Answer 30

Does not automatically make a finding of incapacity

Question 31

Suicide notes

Answer 31

Most common form of holographic will (in handwriting and signed)

Question 32

Re Pommerehnke

Answer 32

Facts: woman killed herself in fire, found she was drunk, left a handwritten note on gate well away from house stating who she wanted stuff to go to

Ratio: found she had capacity, no evidence she wrote while drunk (neat handwriting), note away from house, relationship with nieces

Question 33

Vout v Hay

Answer 33

• Onus
• Once propounder (person trying to prove validity) shows the will was executed with formalities, read to testator, and understood it is presumed they have capacity and burden shifts.
• In suspicious circumstances presumption spent and propounder has burden of proving knowledge, approval, and testamentary capacity
• Balance of probabilities

Question 34

Barry v Butlin

Answer 34

If circumstances exist that arouse the suspicion of the court then such a suspicion will have to be dispelled before it can be probated

Question 35

If something is not right it triggers

Answer 35

• If you are suspicious you have to raise a trial and prove it in solemn form.
• Before you get to solemn form trial have to meet suspicious circumstances case

Question 36

Clark v Nash

Answer 36

• Gave test for proving suspicious circumstances exist
• Not just a bit off, rather circumstances which create a specific and focused suspicion that the testator may not have known and approved of the contents of the will or that the testator lacked testamentary capacity

Question 37

Onus if court believes there are suspicious circumstances

Answer 37

• Testamentary capacity= onus with person wanting to prove will
• Knowledge and approval= person seeking to prove
• Undue influence/fraud= those alleging these

Question 38

Why do onuses matter?

Answer 38

In absence of conclusive evidence the person on whom the onus rests loses

Question 39

When is testamentary capacity required?

Answer 39

If testator had capacity when signed all that needs to be proven is that testator knew it was a will for which they gave previous instructions

Question 40

Re Bradshaw Estate

Answer 40

If indicators they don’t have capacity have to make sure enough evidence to prove understanding