Planning your estate later in life: Four ways to protect your will from a capacity challenge

If you are updating your estate plan later in life, one of the most important things you can do is protect your will from being challenged after you are gone. One of the most common grounds for challenging a will is a lack of testamentary capacity, a legal argument that the person making the will did not fully understand what they were doing at the time. These challenges are more common than many people expect, and they can result in your estate ending up in the hands of unintended beneficiaries rather than the people you chose.

The good news is that there are concrete steps you can take now, at the time of your estate planning, to preserve the evidence needed to defend your will if it is ever challenged. This article explains what testamentary capacity means in law and sets out four practical ways to protect it.

What does it mean to have capacity to make a will?

The legal test for testamentary capacity has not changed since 1870[1], but the volume of cases coming before the courts challenging the validity of wills demonstrates that capacity challenges continue to be fertile ground in estate disputes. 

As a result, it is important for those seeking to alter their estate plans later in life to be proactive in preserving the evidence necessary to prove capacity – or risk having their estate end up in the hands of unintended beneficiaries and estate litigation lawyers.

First, we will outline what capacity is necessary to make a will, and then we will discuss tips for how to preserve the evidence of capacity in the event of a future challenge to your will.

To have capacity to make a will, a will maker must:

• understand the nature of the act they are doing (making a will) and the effect of a will (that they are disposing of their property after death);
• understand the extent of the assets that they own and that they are disposing of in their will;
• know who their heirs are and those who would generally be expected to receive a benefit from the estate (e.g., spouse, children);
• understand how their will disposes of their property and to whom; and
• not be suffering from any delusions or mental disorders that might affect how they dispose of property in their will

A court examining issues of capacity will want to see evidence that the will maker had capacity at two times: when giving instructions to their lawyer, and when the will is executed.

When someone undertakes estate planning later in life, there is a greater risk that a disappointed beneficiary may challenge the will on the basis of a lack of capacity due to allegations of cognitive decline. While there is no way to guarantee that such a challenge will not happen, there are things that you can do to preserve evidence in the event it arises.

What are the four ways to protect your will from a capacity challenge?

1. Use a lawyer to prepare your will

The most important first step is to consult a lawyer in drafting a will. Preparing your own will can lead to numerous pitfalls, in addition to capacity challenges, too numerous to cover in this article. However, with respect to evaluating capacity, the courts have expressly said that 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 estates lawyer.[2] 

A good lawyer will take detailed notes of their meetings, not only of the instructions that you give, but about your appearance, demeanor, alertness, cognition, whether you were alone or with someone that might influence you, etc. These notes form part of the lawyer’s file which may also be entered in evidence to prove a will is valid. Ultimately, capacity is a legal test, not a medical one, and having a lawyer’s evidence will go a long way to proving the validity of your will. You will not have such evidence if you do the will yourself.

Practical tip: If you do find that your memory sometimes slips with age, plan appointments with your lawyer at a time of day where your mental acuity is the sharpest.

2. Get a formal capacity assessment

A contemporaneous medical assessment of your capacity, done at the time of your estate planning, is far more persuasive evidence than a retrospective opinion prepared after the fact. Waiting for your executor to try to obtain medical evidence after you are gone puts them in a difficult position and often produces weaker evidence.

There are various levels of assessment that you can have done.

• A mini-mental status exam: You can ask your regular practitioner to do a mini-mental status exam, which will be in your medical charts, and have them give an opinion to your lawyer to certify that you have capacity.
• A formal assessment by a geriatric psychiatrist: If you have any diagnoses or concerns about cognitive decline, you may want to consider a more formal assessment by a geriatric psychiatrist to certify that despite some cognitive decline, you still have capacity. Either way, these reports should be forwarded to your drafting solicitor. This way, in addition to the lawyer’s file and lawyer’s opinion on your capacity, there will be contemporaneous direct medical evidence on the question of capacity.

3. Write out your own instructions

Consider your estate plans and provide detailed instructions in writing covering off the four parts of the capacity test stated earlier in this article:

• Include an introduction that spells out that these are your instructions for making your will in order to outline what you would like to have happen to your assets when you pass away and who you would like to receive them;
• Include details on all of your assets, including what the assets are and the approximate value of the assets. The more detail the better. For example, do not just say how much money you have in the bank, name the institution and the account numbers;
• Explain who the people are that may reasonably expect to inherit from your estate (this often includes spouses, children, and dependents), and provide an acknowledgement that you have considered your moral and legal obligations to these individuals before deciding how to distribute your estate;
• Set out your instructions for distribution of your estate. Explain who you would like to receive what assets. Give their full legal names and their relationship to you; and
• If you do intend to exclude or leave a nominal bequest to someone who would generally be expected to receive a benefit from your estate, like a spouse or a child, it is a good idea to prepare a memorandum of the reasons for why you have chosen to do so and have your solicitor prepare a statutory declaration with those reasons. This will form part of the solicitor’s file and not part of your will, such that no one will see those reasons unless and until there is a challenge to your will.

4. Sign your will at your lawyer’s office

Finally, as it is important to establish capacity again at the time a will is executed, it is best practice to also execute your will at a lawyer’s office. This will ensure that the lawyer again has the opportunity (and obligation) to assess your capacity at the time you execute your will. It will also ensure that the witnesses to your execution of your will, usually legal assistants, are easy for your executor to find to get their evidence in the event of a capacity challenge and who can provide unbiased evidence that they saw you review and sign your will and had no concerns as to your capacity to do so. 

Signing your will at home in front of friends or neighbors runs the risk that those witnesses may be uncooperative or difficult to locate in the future. There is also the risk of allegations that those witnesses somehow unduly influenced you or did not know to consider your capacity.

The goal: ensuring your wishes are carried out

A will is only as effective as its ability to withstand a challenge. The four steps above: using a lawyer, obtaining a capacity assessment, writing out your own instructions, and signing in a professional setting, work together to build a record that is difficult to challenge and that gives your executor the evidence they need to uphold your wishes.

Estate planning later in life does not have to be complicated. But it does require being proactive about documentation. The time to preserve that evidence is now, not after the fact.

If you are considering updating your estate plan, Miller Thomson’s Estates and Trusts planners can help you put the right documentation in place from the start.

[1] Banks v. Goodfellow (1870), L.R. 5 Q.B. 549.

[2] Waibel Estate (Re), 2023 BCSC 322 at para. 34.