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<< back to all ArticlesPoking Holes in the Presumption of Capacity
In Alberta, if a will is properly signed and executed, the law generally assumes that the person who made it understood their actions and had the mental capacity to make those decisions. This is known as the ‘presumption of testamentary capacity.’ However, this assumption can be challenged. A recent Alberta case, Hole Estate (Re), 2024 ABKB 308 (later upheld on appeal), shows how Alberta courts deal with questions about a testator’s capacity and what kind of evidence is needed to dispute a will.
The Legal Starting Point
A will has to follow certain formal requirements: it needs proper signatures, witnesses, and it must adhere to the standards set out in Alberta’s Wills and Succession Act. Meeting these requirements creates a legal presumption that the will is valid and that its maker understood its contents and had the necessary mental capacity to make those decisions.
This presumption is not absolute. A will can be challenged if the person disputing the will shows that there is a genuine issue worth taking to trial. At this early stage, the challenger does not need to prove the invalidity of the will. Generally, showing the presence of suspicious circumstances is enough to convince the court that a full trial is necessary.
What Counts as Suspicious Circumstances?
Courts look for ‘suspicious circumstances’ that raise doubts about whether the testator knew and approved of the will’s contents and was truly capable of making the will. These can include:
- The testator’s health and mental state when the will was signed;
- Significant changes between one version of the will and the next;
- Whether the reasons for the gifts in the will seem logical or consistent;
- Any unusual or questionable circumstances surrounding the signing of the will; and
- Whether beneficiaries were involved in preparing the will.
If several suspicious circumstances are present, the court may require the will to be proven in a full trial, rather than accepted at face value.
Understanding Capacity When Making a Will
Mental capacity is not just important on the day the will was signed. It should also be present on the day the testator gave instructions to the lawyer. At both points, the person must have what the case law calls a “sound and disposing mind.”
To have a sound and disposing mind, the testator must:
- Understand what a will does and its legal effect;
- Know what property they own and its general value;
- Understand what they are giving away under the will;
- Remember the people who might expect to benefit from the will; and
- Where applicable, understand any potential claims that may arise from people they are choosing to exclude (Hall v Bennett Estate, 2003 CanLII 7157 (ON CA) at para 14).
Simply showing that the testator’s memory was declining is not enough to prove that they lacked capacity when making their will. There must be evidence that they were incapable of making a will at the time they gave instructions or when they signed the documents.
Overcoming the Presumption of Capacity in Hole Estate
In Hole Estate, Justice Burns found enough suspicious circumstances to justify sending the case to a full trial.
First, several people who knew the testator raised concerns about his mental capacity. He had been prescribed medication for dementia as early as 2007, even though his doctor signed a form suggesting that he remained capable of handling estate planning. This conflicting evidence created doubts about his mental capacity.
Second, there were major changes that occurred between his 2003 and 2006 wills. The 2003 will explained why one of five children received a smaller share of the residue. By contrast, the 2006 will left the entire residue to one child without any explanation for the change. This raised questions about capacity and possible undue influence.
Finally, in late 2006, the testator sent his lawyer handwritten edits to an old 2003 will, despite being told there were two newer iterations. When asked to mark up the most recent version, he again revised the 2003 will. The lawyer ultimately made changes based on what he believed the testator wanted, even though the testator’s handwritten edits ignored the existence of two newer wills. This confusion led to serious concerns about the testator’s ability to give clear instructions at the time.
Together, these circumstances were suspicious enough to warrant further investigation.
Justice Burns did not draw conclusions about whether the testator had capacity. Rather, she found enough conflicting information to require a formal determination at trial.
The Appeal of Hole Estate
The Alberta Court of Appeal agreed with Justice Burns’ decision. There were too many unanswered questions and conflicting pieces of evidence. The appeal was dismissed, with instructions to determine the validity of the wills at trial.
Why This Matters
The law begins with the assumption that a properly signed will reflects the testator’s true intentions and that they had the mental capacity to make it. This presumption offers strong protection, but Hole Estate reminds us that it is not absolute. If credible evidence of suspicious circumstances raises doubts, courts will require the will to be formally proven at trial.
For families, this means that there is a legal pathway to challenge a will when concerns about capacity arise. For anyone making a will, this decision is a reminder that clear instructions, proper documentation, and professional guidance are essential to ensure your wishes stand the test of time.
This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.
