Estates & Wills & Trusts

Take proper steps to prove mental capacity in a will: Laredo

By Tony Poland, Associate Editor

While the standards of mental capacity required to draw up a will are well known, a court challenge is always a possibility if the proper steps are not taken when it is being created, Toronto wills and estates lawyer Lisa Laredo tells

“The application of these standards have given rise to many court cases, and each will turn on its particular facts,” says Laredo, principal of Laredo Law. “If a solicitor has any doubts about a client’s mental capacity to make a will, they are well advised to make detailed inquiries and keep copious notes, all the while being conscious of the fact that the capacity to make a will is less onerous than the capacity to manage property.”

She says someone must be at least 18 to draft a will unless that person is, or has been, married, the will is made in contemplation of marriage, the person is a member of the armed forces or is a sailor at sea.

“The law presumes that a person who is at least 18 or falls within the above exceptions has the mental capacity to make a will,” Laredo says. “In other words, they understand what they are doing and understand the nature and general value of their assets that are being dealt with.”

However, she says there may be circumstances when there is a reasonable suspicion that the person is suffering from diminished mental capacity and may not fully understand the nature and effect of making a will.

“This suspicion usually arises in the case of elderly people who are suffering from increasing dementia,” says Laredo.

When creating a will, she says a person must understand the effects of making it, the nature and extent of their property, who is named as beneficiaries and the kind of gifts being bestowed. Laredo notes that being able to understand “the nature and extent of the property” does not require one to know the “precise makeup” of those assets.

“Having taken all that into account, the person must then be able to formulate an orderly plan as to the disposition of his or her property,” Laredo says.

She says the law allows someone writing a will to reject potential beneficiaries as long as it can be shown that they “expressed a rational and legal reason why a particular relative should be written out.”

If there are doubts about a person’s mental capacity to make a will, a lawyer “must make their own inquiries,” Laredo advises.

“Out of an abundance of caution it may be advisable for the solicitor to insist upon an inquiry into the client’s mental capacity by a provincial capacity assessor,” she says.

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