Understanding Capacity to Make a Will

Signing a Will is not enough by itself. The person making the Will must also have the legal capacity to understand what they are doing. This is known as testamentary capacity.

The test

The long-standing test, which traces back to the English case Banks v Goodfellow (1870) and continues to be applied by Canadian courts, asks whether the testator understands:

• That they are making a Will;
• The general nature and extent of their property;
• The people who might reasonably expect to benefit from the estate; and
• The effect of the decisions being made in the Will.

In Alberta, under the Wills and Succession Act, a person must generally be at least 18 to make a Will, subject to limited exceptions.

When capacity is questioned

Questions about capacity can become especially important where a Will is prepared later in life, after a significant illness, or where family members disagree about whether the testator understood their decisions. Concerns about undue influence often arise alongside capacity concerns.

Without the necessary capacity, a Will may ultimately be challenged.

Reducing uncertainty

• Make or update your Will while healthy;
• Meet with the lawyer privately, without beneficiaries present;
• Where there are concerns, consider a medical assessment around the time of signing; and
• Keep good notes of the instructions and reasons for decisions.

Careful estate planning can reduce uncertainty later. Speak with our team about preparing or updating your Will.