What is the testator’s capacity to execute a will?
British Columbia, Canada
The following excerpt is from Devore-Thompson v Poulain, 2017 BCSC 1289 (CanLII):
In the testamentary context, the existence of the presumption of capacity in any given case depends on the circumstances surrounding the will’s execution. The propounder of a will has the legal burden with respect to due execution, knowledge and approval, and testamentary capacity. The propounder is aided by a rebuttable presumption. Upon proof that the will was duly executed with the proper formalities after having been read over by or to a testator who appeared to understand it, it will generally be presumed that the testator knew and approved of the contents and had the necessary testamentary capacity: see Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 S.C.R. 876 at para. 26 [Vout].
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