Testamentary Capacity and Dementia: When Can a Will Be Challenged in BC?
When an aging parent suddenly rewrites their will to leave everything to one caregiving child, it raises hard questions. Was it truly their choice, or were they pressured? And if they were facing cognitive decline, did they have the capacity to make that decision?
In British Columbia, the Wills, Estates and Succession Act (WESA), together with the common law, provides legal rules that address these issues. This article explores how courts assess capacity, how WESA handles undue influence, and the strict deadlines for contesting a will.
What Is Testamentary Capacity?
While meeting physical signing requirements is necessary to execute a valid document, legal formalities are only part of the equation. Under Section 36 of WESA, a person who is at least 16 years old and mentally capable may make a valid will, whereas a will made by anyone under 16 is invalid (subject to limited military exceptions under Section 38).
A will-maker must possess testamentary capacity, which is the legal threshold of mental clarity required to make or alter an estate plan at the time of signing. Lacking this capacity serves as one of the primary grounds for challenging and invalidating a will.
To evaluate mental capacity, British Columbia courts rely on the foundational common-law test established in the Banks v Goodfellow test (1870).
Under this test, the testator must:
Understand the nature and effect of making a will.
Appreciate the extent of their property.
Recognize potential beneficiaries and any moral claims on their estate.
Comprehend how they intend to distribute assets.
Modern BC courts also look beyond these four points, requiring that the testator possess the ability to weigh these factors against one another to form a rational, orderly disposition of their estate.
Does a Dementia Diagnosis Mean Someone Can't Make a Will?
A common misunderstanding is that a clinical diagnosis of Alzheimer's or dementia automatically destroys a person's legal capacity. In British Columbia, this is not the case. The courts recognize a strict dichotomy between a medical diagnosis and the legal construct of capacity.
Dementia is a progressive neurological condition. Individuals frequently experience "lucid intervals," which are periods of time where their mind is clear enough to satisfy the Banks v. Goodfellow standard. In cases like Laszlo v. Lawton, the BC Supreme Court confirmed that a person may suffer from cognitive impairment or an imperfect memory, yet still possess a "disposing mind and memory." The court's primary focus is on the will-maker's specific understanding of the testamentary act at the material time, rather than their overall functional independence or need for daily assistance. However, where progressive dementia has impaired the testator's mind at the material time, as occurred on the facts in Laszlo, the court will invalidate the will for lack of capacity.
Why Timing Matters: Capacity at Instructions and at Signing
When assessing lack of testamentary capacity, timing is heavily scrutinized. British Columbia courts apply a common-law doctrine known as the rule in Parker v. Felgate to bridge potential gaps in cognitive clarity.
Under this rule, if a testator's cognitive state declines between the time they provide instructions to their lawyer and the time the document is signed, the will may still be saved from invalidity. For the rule to apply, the testator must have possessed full testamentary capacity at the time the instructions were provided, the drafted will must strictly comply with those instructions, and at the time of execution, the testator must be capable of understanding that they are signing the will they previously ordered.
It is important to note that the rule has specific requirements concerning how the instructions were given and whether the final will accurately reflects those instructions.
Signs a Will-Maker May Have Lacked Capacity
If you are wondering how to contest a will based on cognitive decline, look for specific, objective evidence rather than simply assuming that an unfair or unexpected will reflects a lack of capacity. In BC, courts may consider the surrounding circumstances when assessing whether a will-maker had testamentary capacity at the time the will was made.
Potential red flags may include:
A sudden or unexplained change to a long-standing will.
Disorientation about the will-maker's finances or property, such as forgetting that they own a home.
Significant isolation of the will-maker from relatives or friends.
Inability to recognize close family members or understand their relationship to the will-maker.
Confusion, fear, or significant hesitation when discussing the estate plan.
Heavy dependence on one individual for housing, finances, transportation, or personal care.
These circumstances do not automatically establish a lack of testamentary capacity. They are potential indicators that may warrant closer examination of the will-maker's mental state and the circumstances surrounding the preparation and signing of the will. Some circumstances, such as dependence on or domination by another person, may also be relevant to a claim of undue influence.
Undue Influence and Dementia (Section 52 of WESA)
Where questions of dementia arise, issues of undue influence almost always follow. Undue influence is not the same as ordinary family persuasion or advice, which is normal and legally permissible. Instead, it occurs when improper influence undermines the will-maker’s ability to make a free and voluntary testamentary decision, making the document a reflection of the influencer’s wishes rather than the will-maker’s true intentions.
To protect vulnerable testators, Section 52 of WESA provides a specific statutory mechanism that shifts the legal burden of proof. Normally, anyone challenging a will must prove that undue influence occurred. However, under Section 52, if the challenger establishes that the will-maker was in a position of "dependence or domination" toward the beneficiary, the burden shifts to the beneficiary to prove that the gift or will was made freely and voluntarily.
This burden-shifting framework has been considered in BC decisions such as Modonese v. Delac Estate Courts may closely scrutinize relationships in which a vulnerable will-maker is dependent on or dominated by a beneficiary.
Wills Variation, Statutory Deadlines, and Potential Outcomes
Challenging a will based on lack of capacity or undue influence focuses on whether the document itself is legally valid. However, a capable, unpressured will-maker can still draft a document that unfairly disinherits close family. In British Columbia, Section 60 of WESA offers a distinct alternative known as a wills variation claim. This allows the court to modify a valid will to provide an "adequate, just and equitable" distribution, though this right is limited to the testator’s spouse and children as defined under WESA.
In Tataryn v. Tataryn Estate, the Supreme Court of Canada established that courts evaluate this adequacy by weighing legal obligations against moral obligations. Even if a testator meets the capacity threshold, arbitrary distributions can be varied if they fail modern standards of fairness. For example, in Grewal v. Litt, 2019 BCSC 1154, the BC Supreme Court varied a multi-million dollar estate to correct an inequitable distribution that strongly favoured sons over daughters based on cultural traditions, determining that such traditions do not override moral obligations in modern society.
Whether you pursue a variation or a validity claim, understanding statutory deadlines is critical. For a variation claim, Section 61 of WESA requires that proceedings commence within 180 days from the date the representation grant is issued, and the executor or administrator must be served within 30 days after that 180-day period expires. While validity challenges based on capacity or undue influence do not share this universal deadline, time remains of the essence. To protect your position, a lawyer may also advise filing a Notice of Dispute, depending on the circumstances, while the validity of the document is evaluated.
Finally, if a court finds that a will or a specific provision resulted from a lack of capacity or undue influence, the court may refuse to give effect to the invalid will or affected provision, depending on the circumstances. If an entire will is struck down, the estate is distributed based on the last known valid will or, if no prior valid will exists, according to WESA's default intestacy rules.
Estate Planning for Incapacity: Protecting Your Legacy
The best way to prevent future legal disputes is to build a strong estate plan while you still have clear mental capacity. A complete plan goes beyond a will, which only takes effect after death. It must also cover what happens if you are alive but unable to manage your finances or make your own healthcare decisions.
In British Columbia, a robust incapacity plan relies on two essential statutory tools. First, an Enduring Power of Attorney governed by the Power of Attorney Act allows you to appoint a trusted individual to manage your financial and legal matters. An enduring power of attorney is designed to continue despite the donor becoming incapable of managing their affairs, subject to the requirements of the Power of Attorney Act.
Second, a Representation Agreement under the Representation Agreement Act can authorize a representative to make certain health and personal care decisions on your behalf. Having a legal professional draft these documents ensures they provide clear authority to your decision-makers and drastically reduces the chances of family conflict or a successful challenge to your intentions.
Frequently Asked Questions
Can a person with dementia legally make a will?
Yes. A diagnosis of dementia does not automatically destroy testamentary capacity. If the person has testamentary capacity at the time the will is made, even if they experience periods of cognitive impairment, the will may be valid. What matters is whether the person satisfies the legal test for capacity at the relevant time.
Who can contest a will in BC?
Under WESA, only spouses and children (biological or adopted) can bring a variation claim arguing they were not adequately provided for. However, the people who may challenge a will’s validity based on capacity or undue influence depend on their legal interest in the estate and the nature of the claim. For example, a beneficiary under a prior will may have an interest in challenging a later will.
How long do you have to contest a will in BC?
For a wills variation claim, the statutory deadline is strictly 180 days from the date the representation grant (probate) is issued. For validity challenges based on capacity or undue influence, the limitation rules depend on the specific claim and remedy sought, but early legal action, such as filing a Notice of Dispute, is vital.
Need Advice?
If you believe a will treats you unfairly, or you want to ensure your own estate plan avoids future disputes, book a consultation with Parr Business Law. We will walk you through your rights and help design a plan that protects your loved ones and your legacy.
Sources:
AI Statement: OpenAI’s language tools and Grammarly were used to generate synonyms, correct grammatical issues, and adjust sentence structure, ensuring greater clarity for the reader.
Wills, Estates and Succession Act, SBC 2009, c 13 (WESA).
Modonese v. Delac Estate, 2011 BCSC 82.
Tataryn v Tataryn Estate, [1994] 2 SCR 807.
Grewal v. Litt, 2019 BCSC 1154.
Laszlo v. Lawton, 2013 BCSC 305.
