Knowledge and Experience. When You Need it Most.
By: Jonathan M. Friedman, B.A., LL.B.
All Estate Lawyers should understand what the court has previously determined to be the duties of a solicitor when obtaining instructions in order to prepare an individual’s Last Will & Testament.
A testamentary instrument can be challenged on many grounds but one of the most common grounds is that of testamentary capacity. This article will focus on a solicitor’s duties when it comes to testamentary capacity, namely, what the court has previously held as required by solicitors and what is the expected “standard” of solicitors when preparing individuals’ testamentary instruments regarding their testamentary capacity.
The legal test for determining a testator’s testamentary capacity was established in the 19th Century case of Banks v. Goodfellow1 but has more recently been reiterated in more contemporary terms by the Ontario Court of Appeal in Re Schwartz. Here, the Court of Appeal held that in order to determine testamentary capacity the testator must be sufficiently clear in his/her understanding and memory to know, on his/her own, and in a general way the following;
1. the nature and extent of his/her property,
2. the persons who are the natural objects of his/her bounty and
3. the testamentary provisions he/she is making;
The testator must also, be capable of
4. appreciating these factors in relation to each other; and,
5. forming an orderly desire as to the disposition of his property.2
The law is clear that a solicitor who undertakes to prepare a will has a duty to inquire into his or her client's testamentary capacity.3 The level or detail of that inquiry is potentially situation specific, meaning the level and/or detail of said inquiry will depend on if the testator in fact suffers from a mental illness, memory loss, delusions etc. However, at the very least, in all cases Estate Lawyers must make a serious attempt to determine whether the testator or testatrix has capacity. If there is any possible doubt, or other reason to suspect that the will may be challenged, a memorandum or note, of the solicitor's observations and conclusions should be retained in the file.4
An Estate Lawyer is retained for the very purpose of ascertaining the mind and will of the testator or testatrix and their comprehension of their properties’ extent and character and of those who may be considered proper and natural objects of his/her bounty.5
Some of the authorities go further and state that an Estate Lawyer should not allow a will to be executed unless, after diligent questioning, testing or probing he or she is satisfied that the testator has testamentary capacity. Yet, the Court has previously decided that this may impose too heavy a responsibility. In Hall v. Bennett Estate, the Court of Appeal, stated, in part, the following;
“careful solicitors who are in doubt on the question of capacity, will not play God or even judge and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question…”6
Therefore, the court requires solicitors to prepare, explain and witness individuals’ wills even if the solicitor doubts their capacity, as long as the solicitor takes and retains comprehensive notes in their file regarding why they have doubts as to the testamentary capacity of said individual and what the solicitor observed during the period of time the individual provided to the solicitor their instructions when they executed their will.7
Estate Lawyers should obtain their instructions directly from the testator or testatrix themselves and not a third party.8 In Re Worrell that Court held, in part, the following;
“There should be no occasion when a solicitor should prepare a will without receiving his instructions from the testator. It is certainly improper for a solicitor to draft a will without taking direct instructions from the testator and then not to attend personally when the will is executed.”9
Furthermore, when taking a testator’s instructions, Estate Lawyers should refrain from asking leading questions, should ensure to enquire as to the nature and extent of the testator’s property and should also record full detailed notes regarding the testator’s instructions, state of mind, state of health, etc.10
Common errors made by Estate Lawyers in the past include, in part, the following:
A person is assumed competent unless there are valid reasons for challenging his competence.13 However, as mentioned above, Estate Lawyers should not be unwilling to prepare a Will due to having concerns regarding the testator’s capacity as this imposes too high a burden on Estate Lawyers, deprives the testator of their ability to prepare and execute a Will and removes the testator’s fundamental right and freedom, which may have negative consequences not only for the testator but the beneficiaries of his or her Will.14 Estate Lawyers should be cognizant that the lack of a capacity assessment does not automatically doom a Will, nor does it relieve a court of the obligation of determining the issues of testamentary capacity and undue influence.15 That said, to expect everyone who is suffering from ill health to undertake a full blown mental capacity assessment before his or her will can be admitted to probate is not the law and if it were, it would disenfranchise many testators from being able to dispose of their property just before death.16
1 (1870) L.R. 5 Q.B. 549(C.A.).
2 Schwartz (Re) 1970 CanLII 32 (ON CA),  2 O.R. 61(Ont. C.A.) aff’d 1971 CanLII 17 (SCC),  S.C.R. 150 (S.C.C.)
3 Hall v. Bennett Estate, (2003) CanLII 7157 (ON CA), at para. 21
4 Ibid. at para. 23. See also Maw v. Dickey (1974), 1974 CanLII 628 (ON SC), 6 O.R. (2d) 146 (Surr. Ct.), at pages 158-9 and Eady et al. v. Waring, (1974)
CanLII 492 (ON CA), at page 635.
5 Ibid. at para 22.
6 Ibid. at para 23.
8 Re Worrell, 1969 CanLII 269 (ON SC)
9 Ibid. See also Murphy v. Lamphier (1914), 31 O.L.R. 287 at pp. 318 to 321
11 Suspicious circumstances may be raised by (1) circumstances surrounding the preparation of the will, (2) circumstances tending to call into question the capacity of the testator, or (3) circumstances tending to show that the free will of the testator was overborne by acts of coercion or fraud (Vout v. Hay,  2 SCR 876, 1995 CanLII 105 (SCC) at para. 25).
14 Hall v. Bennett Estate, (2003) CanLII 7157 (ON CA), at para. 23
15 Duschl v. Duschl Estate, 2008 CanLII 15899 (ON SC) at para 93
17 Ibid at para 106.
Jonathan M. Friedman
This article should not be used in substitute for legal advice and was in no way intended to be relied upon as legal advice. Furthermore, the contents of these notes are intended as a guide for readers. They can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law.