What is the testator’s testamentary capacity?
Saskatchewan, Canada
The following excerpt is from Onofrichuk v. Onofrichuk, 1974 CanLII 932 (SK QB):
The decided cases hold that all delusions do not affect testamentary capacity. Unless the delusions affect the testator’s capacity “to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like”, they may be disregarded: see Leger v. Poirier, 1944 CanLII 1 (SCC), [1944] S.C.R. 152 at 161, [1944] 3 D.L.R. 1. At the same place in his judgment Rand J. pointed out that testamentary capacity may be lacking even though the testator may have a “deceptive ability” to answer questions of ordinary and simple import.
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