What is the testator's capacity to make a will?

British Columbia, Canada


The following excerpt is from Malcolm v. Rounds, 1998 CanLII 4408 (BC SC):

The leading case on the issue of testamentary capacity is the case of Banks v. Goodfellow (1870), C.R. 5 Q.B. 549. At pp. 566-7 Cockburn C.J. stated: In the case of Harrison v. Rowan ..., in the United States Circuit Court for the district of New Jersey, the law was thus laid down by the presiding judge: "As to the testator's capacity, he must, in the language of the law, have a sound and disposing mind and memory. In other words, he ought to be capable of making his will with an understanding of the nature of the business in which he is engaged, a recollection of the property he means to dispose of, of the persons who are the objects of his bounty, and the manner in which it is to be distributed between them. It is not necessary that he should view his will with the eye of a lawyer, and comprehend its provisions in their legal form. It is sufficient if he has such a mind and memory as will enable him to understand the elements of which it is composed, and the disposition of his property in its simple forms. In deciding upon the capacity of the testator to make his will, it is the soundness of the mind, and not the particular state of the bodily health, that is to be attended to; the latter may be in a state of extreme imbecility, and yet he may possess sufficient understanding to direct how his property shall be disposed of; his capacity may be perfect to dispose of his property by will, and yet very inadequate to the management of other business, as, for instance, to make contracts for the purchase or sale of property. For, most men, at different periods of their lives, have mediated upon the subject of the disposition of their property by will, and when called upon to have their intentions committed to writing, they find much less difficulty in declaring their intentions than they could in comprehending business in some measure new."

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