Testamentary Capacity: Ensuring Your Will Stands Up to Challenges

One of the most devastating things that can happen to a family after someone passes away is having their will declared invalid. We’ve seen families torn apart by legal battles when disappointed beneficiaries claim their loved one “wasn’t of sound mind” when the will was created.

Understanding testamentary capacity – the legal term for being mentally competent to make a will – can help you protect your final wishes and spare your family unnecessary conflict.

What Does “Sound Mind” Actually Mean?

In Manitoba, testamentary capacity doesn’t require perfect mental health or memory. The legal standard is whether you understand:

• The nature and effect of making a will
• The extent of your property and assets
• Who your potential beneficiaries are (family members and others who might expect to inherit)
• How your decisions will affect these people

This means someone can have mild cognitive decline, memory issues, or even certain mental health conditions and still have the capacity to make a valid will.

When Capacity Becomes Questionable

Challenges typically arise when someone has been diagnosed with dementia, Alzheimer’s, or other cognitive conditions. However, these diagnoses alone don’t automatically invalidate a will. The key question is whether the person understood their decisions at the specific time they signed their will.

We’ve seen valid wills created by people in early stages of dementia who had “good days” where their understanding was clear. Conversely, we’ve seen challenges succeed against wills made by people who seemed fine but were experiencing medication side effects or temporary confusion.

Red Flags That Invite Challenges

Certain situations make will challenges more likely to succeed:

Sudden Major Changes: Dramatically altering your will shortly after a serious illness or diagnosis, especially if it benefits someone who recently entered your life.

Isolation from Family: Making significant changes while having limited contact with long-time family members or friends who might notice changes in your mental state.

Unusual Bequests: Leaving your estate to unexpected beneficiaries without clear explanation, particularly if it contradicts your previously expressed wishes.

Poor Documentation: Having your will prepared or signed when you’re obviously unwell, medicated, or in a healthcare facility without proper precautions.

Protecting Your Will from Challenges

Choose the Right Time: Don’t wait until a health crisis to update your will. Make changes when you’re feeling well and thinking clearly.

Work with a Lawyer: While you can legally write your own will, having legal guidance helps ensure proper procedures are followed and capacity is properly assessed.

Document Your Reasoning: Consider including a letter explaining significant changes to your will, especially if they might surprise your family.

Medical Assessment: If you have health concerns, consider having your doctor assess your capacity around the time you sign your will.

Witness Selection: Choose witnesses who can later testify to your mental state if needed, rather than just grabbing whoever is convenient.

The Cost of Getting It Wrong

Will challenges can cost families tens of thousands of dollars and take years to resolve. Even if your will ultimately stands up to challenge, the legal fees come out of your estate – meaning less for your intended beneficiaries and more stress for your grieving family.

More importantly, these battles can permanently damage family relationships and overshadow the memory of your life.

Plan Ahead for Peace of Mind

The best time to address testamentary capacity concerns is before they become an issue. If you’re worried about future cognitive decline, consider preparing your will now while your capacity is unquestionable.

If you’re dealing with a health condition that might affect your mental capacity, we can help you navigate the proper procedures to protect your wishes. Contact us today!