What is the testator's capacity to produce a will?
British Columbia, Canada
The following excerpt is from Benekritis v. Benekritis, 1998 CanLII 3816 (BC SC):
Testamentary capacity is defined in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 at 567: As to the testator's capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms.
In accessing testamentary capacity, the evidence of the person who took instructions and prepared the will, although not medically trained, is given considerable weight, particularly where that person is an experienced wills and estate lawyer: Candido v. Cardillo (1991), 45 E.T.R. 99 (B.C.S.C).
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