Table of Contents
When someone passes away, their last will and testament can carry significant emotional and financial meaning. It represents their final wishes and how they intended to distribute their estate. However, disputes can arise when a family member or beneficiary believes that the person who made the will did not have the mental capacity to do so.
At Faber LLP in Edmonton, Alberta, we regularly assist clients with providing guidance on clear wills and responding to challenges. Understanding how to demonstrate that a person was of sound mind is essential. This guide explains what testamentary capacity means, why wills are challenged, how to gather strong evidence, and what steps can be taken in advance to reduce the risk of a dispute.
What is Testamentary Capacity?
In the context of wills, the older phrase “sound mind and memory” is now referred to in law as testamentary capacity. In Alberta, a person must understand what they are doing at the time they make their will. This capacity is assessed based on several key elements.
The person making the will (the testator) must:
- Understand that they are making a will and that it will distribute their property after their death
- Have a general understanding of the property they own and how it can be given to others
- Understand who may reasonably expect to benefit from their estate, including family members and dependents, and appreciate the nature of those relationships
- Be free from serious impairment or undue influence that would make their decision unsafe, coerced, or unreasonable
In Alberta, the Wills and Succession Act requires that the testator have mental capacity at the time the will is signed.
It is important to note that a diagnosis such as dementia or cognitive decline does not automatically mean a person lacks testamentary capacity. Capacity can fluctuate. The critical question is whether the person met the criteria above at the time the will was executed.
Why Wills Get Challenged on Capacity Grounds
Challenges to wills can be emotionally driven and legally complex. In Alberta, a will may be contested for reasons such as lack of capacity, undue influence, fraud or forgery, or failure to provide for certain dependents.
When a will is challenged on the basis of capacity, the argument is usually that the testator did not understand the nature or effect of the will at the time it was signed, or that their judgment was impaired due to illness, cognitive decline, or improper influence.
For example, in McKay v Olsen, 2024 ABCA 90, medical records showed mild dementia and inconsistent decision making during the final months of the testator’s life. However, the Alberta Court of Appeal confirmed that this evidence was not enough to overcome the starting point in law: that a properly executed will is presumed valid.
This presumption of validity means the law begins with the assumption that the testator had capacity when the will was signed. It is the responsibility of the person challenging the will to prove otherwise.
Whether you are defending a will as an executor or considering a challenge, understanding what evidence is necessary, and how to present it, is essential.
How to Prove Mental Capacity: Evidence and Documentation
If there is a possibility that a will may be challenged on capacity grounds, it is important to create a clear record of the testator’s understanding at the time the will is made. The stronger the documentation, the more likely the will is to withstand scrutiny.
- 1. Legal Advice and Professional Drafting
Having a lawyer prepare the will helps ensure the correct formalities are followed, including signatures and witnesses. While proper formalities do not guarantee capacity, they reduce the risk of technical issues and provide reliable professional notes and observations.
- 2. Medical Evidence Close to the Time of Execution
A medical assessment from around the time the will was signed can be powerful evidence. A physician or specialist can comment on memory, reasoning, awareness of property, and understanding of relationships. A diagnosis of dementia or cognitive decline is not automatically disqualifying. The question is the person’s capacity at the time the will was executed.
- 3. Witness Notes or Affidavits
Witnesses who were present when the will was signed, or who heard the instructions leading to its preparation, can provide valuable observations. They may speak to:
- Whether the testator appeared lucid and engaged
- Whether they asked questions and responded appropriately
- Whether they seemed aware of the nature of the document and the property being distributed
These firsthand impressions can be highly persuasive.
- 4. Documenting the Process
A lawyer or estate planning professional should record key details, such as:
- That instructions were given voluntarily
- That no undue pressure or influence was present
- That the testator understood the contents and effect of the will
Documented notes or correspondence from the planning process can be decisive evidence later.
- 5. Managing Red Flags
Certain situations increase the likelihood of a challenge, such as:
- Major changes to beneficiaries compared with prior wills
- Cognitive decline or memory impairment
- A beneficiary playing a strong role in arranging or influencing the will
- The testator being isolated or dependent on a single caregiver
Recognizing these factors in advance allows additional steps to strengthen documentation.
- 6. Timing Matters
If possible, a will should be signed during a period of clarity. Avoid executing the will immediately after surgery, during active infection or confusion, or when medication affects awareness. Capacity can vary day to day. Choosing the right time improves the quality of evidence.
What to Do If the Will Is Challenged
Even when a will has been carefully prepared, disputes can still arise. If a challenge is made, or you suspect one may be coming, the steps taken early can significantly affect the outcome.
If You Are the Personal Representative (Executor), gather key documents promptly, including:
- The current will and any previous wills
- Medical records
- Notes and correspondence from the drafting lawyer
- Witness statements or affidavits
- Cognitive assessments or capacity evaluations, if they exist
- Being organized early helps clarify the facts and strengthens your position.
If You Are Considering a Challenge
- Confirm whether you have legal standing. In Alberta, this often includes spouses, adult interdependent partners, children, dependents, or others with a recognized interest in the estate. Identify the basis for the challenge, such as lack of capacity or undue influence, and begin gathering evidence quickly. Time limits may apply.
Consider Resolution Options
- Litigation is costly and uncertain. Mediation or negotiated settlement can resolve many disputes more efficiently and with less emotional strain. Many estate challenges settle once the financial and personal costs of court become clear.
Remember Capacity Is Assessed at the Time of Signing
- A cognitive impairment diagnosis alone does not determine capacity. Courts focus on the testator’s ability at the moment the will was executed and whether the legal criteria for testamentary capacity were met.
If You Are Defending the Will, demonstrate that the process was sound. Show that:
- The testator provided instructions freely
- They understood what the will would do
- The drafting lawyer followed proper steps
- Witnesses observed appropriate understanding
- No undue influence or coercion was present
Wills and estate law is detailed and continues to evolve. Working with counsel who understands Alberta statutes and case law is important for both defending and challenging a will effectively.
How to Reduce the Risk of a Capacity Challenge
As an Edmonton, Alberta based estate planning firm, Faber LLP helps clients plan ahead to reduce the likelihood that a will is challenged on the basis of mental capacity. While no plan can eliminate all risk, certain practical steps can make the testator’s intentions clearer and better supported.
- Plan Early: If possible, avoid preparing a will during a period of declining health or crisis. Executing a will when the testator is stable and thinking clearly creates a stronger foundation.
- Consider a Capacity or Cognitive Check: Where appropriate, a brief assessment by a physician or other health professional near the time of signing can help show the testator understood their decisions. This does not need to be invasive. It simply provides clarity.
- Encourage Open Communication: When families understand the reasoning behind decisions, there is often less conflict later. Notes, letters, or conversations that explain the testator’s wishes can be helpful in demonstrating intent.
- Use Professional Drafting: Having a lawyer prepare or review the will helps ensure the legal requirements are met and that there is a clear record of how instructions were given. Detailed file notes from the drafting process are valuable evidence if the will is later questioned.
- Avoid Beneficiary Influence: If a beneficiary takes a leading role in selecting the lawyer or directing the process, it may raise concerns about undue influence. When this risk exists, make sure the testator receives independent legal advice and can give instructions privately.
- Keep Complete Records: Keep copies of all versions of the will, notes from meetings, dates, documents reviewed, and any medical or cognitive assessments. Good documentation is one of the strongest protections against later challenges.
- Review the Will Periodically: Health, relationships, and financial circumstances can change. Reviewing the will regularly ensures it reflects the testator’s current wishes and can prevent disputes that arise from outdated plans.
By taking these steps, the risk of a successful challenge is significantly reduced. When a will is prepared carefully, with respect for the testator’s wishes and awareness of their health and circumstances, it is far more likely to be honored.
Why This Matters in Alberta
In Alberta, the legal system places strong weight on the intention of the testator, but also protects against documents that reflect impairment, undue influence or improper execution. As one source puts it, “wills are commonly challenged on the grounds of the testator’s mental capacity and may be invalidated if a lack of mental capacity is proven.” (mergenlaw.com)
We operate in Edmonton and across Alberta and have insight into how the Provincial courts treat capacity challenges. The geographic and legislative context matters. Being aware of Alberta’s statute-law and case-law helps us tailor advice that is practical for you.
In Summary
- Testamentary capacity refers to a person’s understanding at the time the will is made. The testator must understand that they are making a will, have a general sense of the property they own, recognize who may have a claim to their estate, and be free from significant impairment or undue influence.
- A diagnosis such as dementia or serious illness does not automatically mean lack of capacity. The focus is on the person’s functional ability at the moment the will was executed.
- A challenge based on capacity can succeed, but the burden lies on the person bringing the challenge to overcome the presumption that the will is valid.
- To strengthen evidence of capacity, it is helpful to document the will-making process carefully. This may include professional drafting, medical or cognitive assessments, clear witness observations, and records of the testator’s reasoning and intentions.
- Preventative planning reduces the risk of disputes. Act early, maintain records, communicate wishes, review the will periodically, and ensure the testator receives independent advice, especially when beneficiaries are closely involved.
- If a will is challenged, act promptly. Gather documents, consider negotiation or mediation, and work with experienced Alberta estate counsel. Local legal knowledge and familiarity with the Wills and Succession Act are essential.
At Faber LLP, we assist families in preparing clear, well-supported wills and in navigating disputes when they arise. Whether you are planning ahead or responding to a challenge, you do not need to manage the process alone. We are here to help ensure your loved one’s wishes are respected and their legacy protected.