What is Testamentary Capacity if You Contest an Ontario Last Will?

Lack of testamentary capacity can invalidate a person’s last will. I will explain “testamentary capacity” or TC. Will challengers need to provide courts with evidence to show a person lacked TC to set aside wills.

You may find evidence of suspicious circumstances in a person’s last will. But that evidence may not prove a person lacked TC or a sound and disposing mind.

What Is a Sound Disposing Mind?

Ontario’s appeal court has referred to this term in a Supreme Court of Canada decision Leger v. Poirier, where respected Justice Ivan Rand said:

A ‘disposing mind and memory’ is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions and the like . . .

If you are trying to prove a last will is valid you are called a propounder of the will. The onus of proving testamentary capacity is on persons propounding wills.

Presumption of Testamentary Capacity

However, propounders of wills have a rebuttable presumption of testamentary capacity. TC is presumed to exist in certain circumstances that I’ll explain.

What is the presumption of TC to make a will?

In another Supreme Court of Canada decision Vout v. Hay, Justice Sopinka explains the presumption of TC. Here’s what he stated [which I have annotated]:

. . . Upon proof that the will was duly executed with the requisite formalities, after having been read over to or by a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity. [my emphasis added]

Where suspicious circumstances are present, then the presumption [of TC] is spent [or cancelled] and the propounder of the will reassumes the legal burden of proving knowledge and approval. [ of the will’s contents]. In addition, if the suspicious circumstances relate to mental capacity, the propounder of the will reassumes the legal burden of establishing testamentary capacity [TC]. Both of these issues must be proved in accordance with the civil standard [of proof on the balance of probabilities]. There is nothing mysterious about the role of suspicious circumstances in this respect. The presumption [of a wills’ validity] simply casts an evidentiary burden [the onus to prove] on those attacking the will. This burden can be satisfied by adducing or pointing to some evidence which, if accepted, would tend to negative knowledge and approval or testamentary capacity. In this event, the legal burden reverts to the propounder.

Want to know what suspicious circumstances are? Read this blog post.

The Supreme Court of Canada recognized the connection between presumptions of proof and coercion. The burden of proof, however, is on those who allege undue influence.

Sopinka J. who played Canadian professional football while in law school explains the distinction. Those who allege undue influence must provide evidence to prove it. The judge continues in Vout:

[29] Nonetheless there is a distinction. This distinction was aptly expressed by Ritchie J. in Re Martin…

There is a distinction to be borne in mind between producing sufficient evidence to satisfy the Court that a suspicion raised by the circumstances surrounding the execution of the will have been dispelled and producing the evidence necessary to establish an allegation of undue influence. The former task lies upon the proponents of the will, the latter is a burden assumed by those who are attacking the will and can only be discharged by proof of the existence of an influence acting upon the mind of the testator of the kind described by Viscount Haldane in Craig v. Lamoureux … where he says:

‘Undue influence, in order to render a will void, must be an influence which can justly be described by a person looking at the matter judicially to have caused the execution of a paper pretending to express a testator’s mind, but which really does not express his mind, but something else which he did not really mean.’

Justice Sopinka continues to say:

“A person may well appreciate what he or she is doing but be doing it as a result of coercion or fraud.”

If you’re defending or contesting a last will get proper estate advice.

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Contact me for an appointment to discuss contesting or defending a will.