a man signing a will

Testamentary capacity is a legal standard that speaks to someone’s mental state at the time of writing a will. It is a critical concept to understand when writing or contesting a will in British Columbia, as challenges surrounding this state may arise after the will maker’s passing.

Munro & Crawford’s Vancouver probate lawyers help individuals and families navigate the BC probate and estate administration process, and can provide general legal information regarding the key details of testamentary capacity.

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What Is Testamentary Capacity?

Testamentary capacity is a person’s legal ability to execute or amend a valid will. Under Section 36 (1) of the Wills, Estates, and Succession Act, a will maker, also known as a testator (male) or testatrix (female), must be at least 16 years old and be “mentally capable of doing so.”
As such, for someone to meet the standard of testamentary capacity, they should be aware of the following:

  • The nature and effect of a Will
  • The extent and composition of their estate
  • The people who would have an expectation to benefit under the Will

It is also worth noting that a person could lack testamentary capacity in other areas of life. For example, the testator/testatrix could lack the testamentary capacity to make financial decisions, but still hold testamentary capacity when giving instructions to have a will prepared and then executing it.

Is It Possible to Challenge Testamentary Capacity?

Yes, it is possible to challenge testamentary capacity. The two most common methodologies for challenging testamentary capacity include: proving that the deceased party did not possess said capacity at the time of their passing, or by alleging that suspicious circumstances existed.
Proving and challenging that a will is not rational or made under suspicious circumstances is complex. Speak with a Vancouver probate lawyer if you have questions about your legal situation. We will ensure you have the information you need to meet your legal objectives, while helping you through the process.

Munro & Crawford Is Ready to Help

Do you have questions about testamentary capacity? Or about contesting a will in general? If so, our Vancouver probate lawyers are ready to help. Contact the experienced and empathetic legal team at Munro & Crawford by calling 604-266-7174 or messaging us online.

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