Wills are important documents in pre-arranging the distribution of assets following death.

In order for a will to be valid, the person making the will needs to be capable of doing so. At the time of executing the will, the testator must be free and capable and have a sound disposing mind to understand and appreciate items 1-3 below.

In order for a person to be determined capable of executing a will, the person needs to;

1. Understand the purpose and effect of making a will;
2. Understand the nature and value of his or her assets or property; and
3. Understand who the presumed beneficiaries of his or her estate are.

Further, a testator should have an appreciation of any possible legal and moral claims that may be made against their estate.

Proof of capacity to make a will can involve the evidence of the lawyer involved in the preparation of the will, as well as relatives and friends.

If there is any concern about the capacity of a person planning to execute a will, it is important that the person obtain a capacity report from his or her family doctor or that the person undergo a capacity assessment under the Substitute Decisions Act prior to executing the will.

Barrie Hayes, Partner