Challenging a Will for Lack of Capacity, Including Dementia

It is a hard moment when a parent's last will looks nothing like what they used to say, and it was signed when they were already forgetting names, getting lost, or living in care. Families often ask whether a dementia diagnosis means the will cannot stand.

The short answer is that diagnosis alone does not decide it. BC courts look at the will-maker's state of mind when the will was made, and at how the will came about. Getting the evidence together early, before probate is granted, can make a real difference to what is possible.

Capacity is about the will, not the diagnosis

Section 36 of the Wills, Estates and Succession Act (WESA) says a person who is 16 or older and who is mentally capable of doing so may make a will. The Act does not define "mentally capable". The test comes from long-standing case law, and it is tied to the task of making a will.

In general terms, courts ask whether, when the will was made, the will-maker could understand:

• What a will is and does. That they were giving instructions for what happens to their property on death.
• Roughly what they owned. Not every account balance, but the general nature and extent of their property.
• Who might expect to benefit. The people, such as a spouse and children, who would naturally have a claim on them.
• How the will affects those people. And they must not have been driven by a disorder of the mind, such as a delusion, in making the gifts.

Dementia is a progressive condition, and its effect varies from person to person and sometimes from day to day. A person with an early diagnosis may still have capacity to make a simple will, while a person with advanced disease may not. The question is always the will-maker's state of mind at the time the will was made or the instructions were given.

Who has to prove what

When a will has been properly signed and witnessed, the will-maker's capacity and knowledge of the contents are generally presumed. In Vout v. Hay, the Supreme Court of Canada explained that suspicious circumstances can rebut that presumption. If they do, the person relying on the will has to prove, on a balance of probabilities, that the will-maker knew and approved of its contents and, where capacity is in question, that the will-maker had capacity.

Depending on the facts, circumstances that raise suspicion might include a will made shortly after a serious diagnosis, a sharp change from earlier wills, a beneficiary who helped arrange the will, or a will-maker who was isolated from family.

Capacity and undue influence often travel together

Many late-life will challenges raise both capacity and undue influence. They are different claims. Capacity asks whether the will-maker could make a will. Undue influence asks whether someone else overpowered their free will.

Section 52 of WESA changes the usual burden for undue influence. If the person challenging the will shows that another person was in a position where the potential for dependence or domination of the will-maker was present, the person defending the will must show that undue influence was not used. Dementia often creates exactly that kind of dependence, so the two issues are frequently argued side by side.

The evidence that tends to matter

Capacity cases are decided on evidence about the will-maker's mind at the relevant time. Useful material can include:

• Medical records. Doctor's notes, cognitive assessments, reports from other physicians and care home charting from around the date of the will.
• The lawyer's or notary's file. Notes of the instructions meeting, who attended, and any capacity concerns recorded at the time.
• Earlier wills. A consistent pattern, or a sudden break from it, can be telling.
• Evidence from people who saw the will-maker. Friends, neighbours, caregivers and professionals who dealt with them around that time.
• Financial records. Signs of confusion about money, or of others taking control of finances.

Some of these records are held by others and may need to be requested or obtained by court order. Families sometimes assume a diagnosis letter is enough. It rarely is on its own.

Act before probate is granted

Under Rule 25-10 of the Supreme Court Civil Rules, a person entitled to notice of a probate application, or who claims under an earlier or later will, can file a notice of dispute before the grant is issued. While a notice of dispute is in effect, the registry must not issue a grant. A notice of dispute ends one year after filing unless it is renewed by the court, withdrawn, removed, or the will is proved in solemn form.

A notice of dispute is a holding step, not a challenge in itself. The actual question of validity is decided in a court proceeding, usually one in which the will is proved in solemn form after a trial or hearing.

A capacity challenge is different from a wills variation claim

A capacity challenge says the will is not valid at all. A wills variation claim accepts that the will is valid but asks the court to change it because it does not make adequate provision for a spouse or child. The two have different tests and timelines. Our article on contesting a will in BC explains the 180-day wills variation deadline, and our estate disputes overview shows how the different claims fit together.

If you are on the planning side and a family member has recently been diagnosed, see our guide to estate planning after a dementia diagnosis.

Questions about a parent's late-life will? Have the evidence assessed early

Our probate and estate lawyers can review the will, the circumstances of its signing and the medical and other records, explain the likely issues, and take steps such as filing a notice of dispute or bringing or defending a court challenge.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.