This Blog was written by Emily Racine, Estate and Trust Consultant with Scotia Wealth Management

We all know how important it is to have a valid will. Part of that validity stems from ensuring that the testator was capable and of sound mind when he or she signed the will.  This test can become tricky, however, if the testator is suffering from delusions or hallucinations. While it seems instinctually clear that a will made under a delusion should not be valid, if the person is acting irrationally, yet the irrational beliefs hold no relation to their property or beneficiaries then it may be deemed that they still have testamentary capacity.

The test for having the capacity to make a will is well established in Canadian courts. The testator must understand that she is making a will and that a will disposes of property upon her death; she must understand the nature of her assets to be disposed of; she must understand and appreciate those who may have a claim on her estate; and she must be free of delusions which may affect her decision. (Banks v. Goodfellow 1870 LR 5 QB 549)

The tricky question comes up when an individual may be suffering from delusions or hallucinations which do not affect the test as set out above. For example, Jane certainly does not have capacity to make a will if she is suffering from the delusion that one of her children has been replaced by an alien look-alike and she therefore wants to change her will to remove this child. However, if John believes he is being hunted by monsters and need to update his will before they catch him, this delusion does not necessarily prohibit him from making a will. If John meets the rest of the conditions for creating a valid will and his delusion is not affecting any decisions about his will, John may be found to have capacity. If he understands his property and disposes of it rationally, the fact that he suffers from a delusion does not necessarily preclude him from making a will.

It is very important for lawyers to understand the test for testamentary capacity as the consequences of finding someone incapable of making a will can be severe.