Why It’s Important to Consider Incapacity Planning for Your Estate
Note: This article does not contain legal advice about incapacity or estate planning. If you would like advice on your specific situation, please contact Spraggs Law.
Q: What is incapacity planning, and why is it important?
Cody Wagner (CW): As British Columbians age and the COVID pandemic continues, many people are updating their wills or drafting new ones to help ensure their estate assets go to their intended beneficiaries when they pass. Wills are often updated as life circumstances change, including the wishes and health of the will-maker who may be experiencing forms of cognitive impairment such as memory loss, confusion and paranoia.
Not surprisingly, wills are sometimes challenged on the basis of a lack of “testamentary capacity” of the will-maker. It is therefore vitally important that the will-maker have testamentary capacity at the time a will is created or updated to help defend against future challenges to the will based on a lack of testamentary capacity.
What are the legal tests to determine testamentary capacity?
CW: The law in British Columbia is clear that cognitive impairment of a will-maker, on its own, is not determinative of whether that will-maker has testamentary capacity.
The issue is whether, despite the cognitive impairment, the will-maker was able to:
- Understand the nature and effect of a will;
- Understand the nature of effect of the deceased’s property;
- Understand the extent of what was being bequeathed under the will ;
- Remember the persons who might be expected to benefit under the will; and
- Understand the nature of the claims that may be made by a person who is excluded from the will.
The BC Supreme Court, in Nykoryak v. Anderson, 2017 BCSC 1800, set out the above framework and referred to case law that notes additional principles. For example, a will-maker may have sufficient mental capacity even though their ability to manage other aspects of their affairs is impaired.
Also according to the Nykoryak v. Anderson Supreme Court ruling, imperfect or impaired memory is not determinative unless the impairment is so great that the person is unable to comprehend on their own the “essential elements of will making, property, objects, just claims to consideration, revoking of existing dispositions and the like”.
As well, the ruling notes that testamentary capacity is a legal question and not a medical question which means that a medical opinion, although valuable and relevant, is not determinative of testamentary capacity.
Testamentary capacity, according to the Court in Nykoryak v. Anderson, is not necessarily negated by things such as “imperfect memory, inability to recollect names and even extreme imbecility. The real question is whether the testator’s mind and memory are sufficiently sound to enable him or her to appreciate the nature of the property he was bequeathing, the manner of distributing it and the objects of his or her bounty”.
Additionally, the Court in Nykoryak v. Anderson noted helpful passages from an Ontario decision including:
- “To leap from an initial diagnosis to a conclusion of legal incapacity is unwarranted and very dangerous reasoning”;
- “Diagnosing someone as having “dementia” does not mean the person is “demented”; and
- “Diagnosing someone as having Alzheimer’s does not mean the person lacks capacity (though it may foretell a loss of capacity if the disease progresses as expected)”.
Q: What can you do to increase your chances of surviving an incapacity challenge?
CW: There are multiple steps a will-maker can take to increase the chances that a will would survive a testamentary capacity challenge in court.
Those steps include:
- The will-maker obtaining independent legal advice without the presence of any potential beneficiaries and where open-ended questions of the will-maker are asked; and
- Involving the will-maker’s medical providers and, if necessary, obtaining a medical opinion in regard to the will-maker’s capacity.
Q: What can you do when you believe a will has been made without capacity of the testator?
CW: Spouses, children and beneficiaries who wish to challenge a will’s validity based on the will-maker having insufficient testamentary capacity at the time the will was written may seek an order from the court that the will is invalid.
If the will is in fact valid, if the will-maker’s spouse or children believe the will does not make adequate provision for their proper maintenance and support, they can apply the court to modify, or “vary”, the will pursuant to the BC Wills, Estates and Succession Act.
Need help with an estate law issue? Contact the team at Spraggs Law
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