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Capacity Claims

What are capacity claims?

 

A common estate litigation claim involves family members or others close to the deceased, such as a common-law spouse, who feel they were wrongly treated or completely left out of a Will because the deceased may not have been mentally capable to make certain decisions at the time the Will was written.

This most often happens when someone executes a Will late in life, possibly while suffering from some form of mental impairment, such as dementia.

What decisions could capacity affect?

Estate planning involves making a number of important decisions, and an individual’s mental capacity can affect the legal consequences of all of them. For example, did the deceased have capacity to:

  • make a Will?
  • manage property?
  • manage personal care?
  • marry?
  • appoint a Power of Attorney?
  • decide on medical care?

What will a Court look at to determine capacity?

Whether someone has mental capacity to make decisions depends on the type of decision being made. For example, an individual may have the capacity to marry but they may not have the capacity to make a Will.

 

Depending on the subject of the claim, different things will have to be proved:

 

  1. Capacity to make a Power of Attorney or a Will

To prove a person had capacity to make a Power of Attorney or a Will, known as testamentary capacity, it must be proven that the person was of sound mind, memory and understanding at the time the Will was written.

To prove testamentary capacity, the following questions are usually asked:

(i) Did the person understand what he or she was doing along with the “nature and quality of the act”?

and

(ii) Was the person able to understand and recollect:

  • what property he or she had,
  • the people that would usually be expected to benefit (such as a child or spouse),
  • what was being given to each beneficiary, and
  • the claims of others who were being excluded.
  1. Capacity to manage property

To prove a person had capacity to manage property, that person must have:

  • understood the information that was relevant in making a decision in the management of their property; and had
  • the ability to understand the reasonably foreseeable consequences(predictable result) of their decision or of not making a decision.
  1. Capacity to manage personal and medical care

To prove someone had capacity to manage personal and medical care, the person must have had the ability to understand:

  • relevant information when making a decision about health care, nutrition, shelter, clothing, hygiene and safety; and
  • the reasonably foreseeable consequences(predictable result) of their decision or of not making a decision.
  1. Capacity to marry

The capacity to marry is generally considered comparable to the capacity to enter into any binding contract. To ensure that the parties to the contract can be held accountable under the agreement, the parties must be of sound mind, meaning that they are able to understand the full meaning and effect of the contract that they are agreeing to. A contract made by someone who is determined to be mentally incapable of entering into the agreement, generally, will not be obligated under the agreement. Mental incapacity can arise for different reasons, such as due to a disability or if the person was intoxicated.