In order to make a valid Will, the Will-maker must have mental capacity.  It’s a pretty low test: (1) Know they are disposing of their property; (2) know the general nature and extent of the property being disposed of; and (3) know the moral claims on the Will-maker.  The Will-maker can’t have any delusional belief which interferes with understanding these three items.

It's enough to know that you have a house, some mutual funds, etc. worth about $2 million.  It’s enough to know you have a current spouse and three kids – one of whom was the result of a one-night stand decades ago (who your spouse doesn’t know about). 

If there’s likely to be any dispute about mental capacity by the potential heirs, it’s a good idea to meet with your family doctor who makes a note that you discussed the terms of the Will, and that you were mentally competent.  In serious cases (e.g., history of mental illness) a more formal assessment and report is worth the money.

Good lawyers will include a “capacity note” in their file for any Will-Maker over about 60, as a matter of routine. 

A trial in BC concerned a woman with 5 natural children, 1 adopted child, and 1 foster child.  She frequently changed her Will, disinheriting one or more.  Sometimes she named them: “Nothing to Charles because he is evil.”.  Sometimes, she just left them out – naming only the others.  The same lawyer did at least a dozen Wills for her – each different.  At trial this lawyer was asked how many children the old lady had.  He replied: “I don’t know – I never asked.”  Pretty hard to show she understood the mortal claims on her.  The result was an estate of over $350K – after all the lawyers’ fees – was split at about $10K to each child: https://canlii.ca/t/1fmps.  The judge refused to order damages against the “never asked” lawyer.

The formality of proving “testamentary capacity” isn’t very hard.  It’s occasionally a little time-consuming.  It’s one of those things that lawyers charging a few hundred dollars just don’t bother doing.  Every once in a while, not doing it ends up costing a fortune and years of bitter litigation.

There’s a Clear way to do a valid Will: hire a lawyer who will give Clear Legal advice.

We are hosting a Zoom seminar on estate planning on 12 May. Watch this space for details.