June 2, 2011
There are many good reasons to make your will now, rather than putting it off. Accident and illness generally are always risks, but increasingly, diminished mental capacity is becoming an issue. Although diminished capacity does not necessarily mean incapacity, it can create confusion, increase costs, and increases the risk that the testator’s wishes may not be followed. Progressive diseases such as Alzheimer’s disease are particularly troubling.
Although the capacity to make a valid will is sometimes said to be a high threshold, judges are reluctant to take away people’s power to arrange their own affairs. Generally, a person need only be of sound mind, memory and understanding to make a will. If the will is contested, a court looks at factors such as:
- did the testator (the person making the will) understand the nature of the act (what a will is)?
- did the testator know what property she owned, its nature and approximate value?
- was the testator aware of the existence and identities of the “ normal” beneficiaries?
- did the testator relate these factors together?
- is there an orderly plan of giving?
- are there “ suspicious circumstances” such as unusual gifts, or in the circumstances of signing?
Because capacity is “point in time”, persons suffering variable or progressive illnesses may have capacity when alert and oriented. The key times for determining capacity are the time the will instructions are given, or the time of signing. The testator must have capacity at one of those times. If the capacity exists on giving instructions, the testator at execution need only know they are signing the will they requested.
In determining capacity, a Court looks at both medical evidence, and the evidence of people who dealt with the testator on a day-to-day basis. Often, the evidence of people who knew the individual will be more important than that of doctors. Lawyers are not specially trained to judge or determine capacity, but we are expected to be wary for signs of a lack of capacity, and take precautions against invalid wills being created.
In Ontario, the Substitute Decisions Act provides a formal assessment process for capacity to make financial decisions and health care choices. Although that Act does not formally speak to the capacity to make a will, a person found to lack capacity on a statutory assessment would be a poor candidate to make a valid will.
So, the answer to “ Can someone with Alzheimer’s disease make a will?” depends on how advanced their condition has become.
Disease, illness, or accident can strike at any time. This can create issues of capacity. Making a will early in life, and reviewing it regularly, is important. Help in addressing questions of capacity is just one reason that having a lawyer prepare the will is an excellent investment. The cost of a will is modest compared to the expense involved in a lengthy court challenge.