- a minor person who is, or has been, married;
- a minor person who is contemplating marriage and the Will states that it is made in contemplation of marriage to a named person (such a Will is not valid unless and until the marriage to the named person has taken place);
- a minor person who is a regular and/or active member of the Canadian Forces; and
- a minor person who is a sailor and at sea.
Determining testamentary capacity can be challenging in certain circumstances and the SLRA provides no formal test. The foundational principles for establishing testamentary capacity actually come from case law. The seminal case is Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 [1861-1873], which is an English case from almost 150 years ago. The court held in that case that in order to make a valid Will, a testator must:
- understand the nature of the act (making a Will) as well as the effect of that act;
- know and understand the extent of the property of which he or she is disposing; and
- comprehend and appreciate the claims that exist on his or her estate (i.e., his or her dependents and legal obligations).
Another related component of testamentary capacity is ensuring that the testator is acting on his or her own volition and initiative, and that there is no one who is unduly influencing the testator’s decisions. It is critical that a Will reflects the testator’s true intentions.
Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.