Verifying the capacity of a testator prior to him or her executing a will is essential, and the test for testamentary capacity is well known to drafting solicitors and estate litigators. In particular, Banks v. Goodfellow provides that a person executing a will: (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; (3) shall be able to comprehend and appreciate the claims to which he has to give effect; and (4) shall possess no insane delusion that shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
While Banks v. Goodfellow lays the groundwork for determining testamentary capacity, extra steps may have to be taken depending upon, in part, the age and health of the testator. In Re Sopel Estate, for example, the court analogized a testator who could neither read nor write in English to a blind person. The court went on to comment that it was the duty of the lawyer to ensure in such a case that the will was read aloud to the testator and in the presence of witnesses.
Notably, form 74.08, which is an affidavit of execution of a will or codicil, contains a small note at the bottom. It reads: “NOTE: If the testator was blind or signed by making his or her mark, add the following paragraph: 3. Before its execution, the document was read over to the testator, who (was blind) (signed by making his or her mark). The testator appeared to understand the contents.”
Strictly speaking, the law does not require an affidavit of execution to accompany a will; an affidavit of execution does not form part of the will and is a separate document that is required when an executor applies for a certificate of appointment of estate trustee with a will, pursuant to Rule 74.04 of the Ontario Rules of Civil Procedure. Notwithstanding the foregoing, in the event of a will challenge, a court will surely seek to verify what was done at the timing of execution to ensure that a testator who is hearing or sight impaired, for example, knew and understood the document he or she was signing. In addition, it is prudent for drafting solicitors to keep detailed notes regarding what was done to confirm testamentary capacity and what extra steps were taken, as applicable, with respect to a testator who presented with some form of impairment.
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