Testamentary Capacity: Take Some Positive Steps Before it is Too Late

The Story of Martha and Henry

In Alberta, the Wills and Succession Act R.S.A. came into effect on February 1st 2012 replacing the Wills Act, Intestate Succession Act, Survivorship Act and Section 47 of the Trustee Act. It is now the primary statute in Alberta that deals with wills, intestacy, survivorship, dependent support, beneficiary designations and other succession issues.

 

Section 13 of the Act states the following:

 

  • An individual who is 18 years of age or older may make, alter or revoke a will if the individual has the mental capacity to do so.

 

“Mental capacity” is not defined in the Act but has universally been accepted as the penultimate consideration in determining whether or not a person has the ability to make a will or whether or not a given will is indeed valid. This is referred to among legal circles as “testamentary capacity”.

 

There is no standardized test for determining testamentary capacity and although it is suggested that lawyers are trained to assess mental capacity for the purpose of taking will instructions and before having someone sign a new will, my own experience would suggest that such “training” is limited and more imaginary than real. Clearly, most lawyers understand the necessity to assess the client’s ability to give will instructions but putting this into practice can be tricky and is more of an art than a science. READ ON

 

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