Baker & Company
January 22nd, 2024
Why Testamentary Capacity Matters for Will-Makers
The importance of estate planning cannot be overstated. Preparing a will and other estate planning documents is the single best way to ensure that your assets are distributed following your wishes after you are gone. Unfortunately, far too many Ontarians wait too long to prepare their estate planning documents. At best, waiting too long might cause unneeded stress as you rush to prepare your will. At worst, you may miss out on the opportunity to get your estate plan in place.
One issue that can threaten an individual’s ability to create an estate plan is testamentary capacity is their mental capacity to understand and appreciate the effects and consequences of making their will. Without testamentary capacity, a will is invalid. This article will explore what testamentary capacity is, and how to determine whether someone has it at the time their will is executed.
What is Testamentary Capacity?
As alluded to above, testamentary capacity refers to an individual’s mental capacity to create a valid will. “Incapacity” may arise from a variety of health conditions, including dementia, learning disabilities, mental health issues, or medical events such as strokes.
Confirming that an individual has testamentary capacity ensures that wills and other estate planning documents accurately reflect the will-maker’s intentions and that they were not unduly influenced or coerced into making decisions that go against their interests.
If an individual creates a will and another party later claims that the will-maker did not have the capacity to create the will, a court may find that the will was invalid, rendering their estate plan unenforceable. Thus, it is critical to ensure that a will-maker has the necessary capacity to create a will when they are making it.
The single best way to avoid capacity issues in estate planning is to create your estate plan before capacity issues arise! To that end, if you haven’t already created your estate plan, now is the perfect time to speak with an experienced wills and estates lawyer.
…incapacity planning should be included as part of your estate plan. Like outlining how you want your estate to be distributed in your will, you can also appoint individuals to make decisions (like financial or health care decisions) on your behalf if you become incapable of making those decisions yourself.
Baker & Company, Toronto
