What is the substance of capacity in relation to testamentary dispositions and gifts?

Nova Scotia, Canada


The following excerpt is from Raczkowski-Filliter v. Raczkowski, 2022 NSSC 64 (CanLII):

In Slover v. Rellinger, 2019 ONSC 6497, the court commented on the substance of capacity in relation to testamentary dispositions and gifts (citations omitted): 370 To lose testamentary capacity on the basis that the testator lacks a sound and disposing mind, a lack of mental capacity or mental disorder must be established. This is more than being "eccentric, unfair or capricious"... It is more than entertaining "wrong-headed notions" and doing "eccentric ... absurd and foolish acts"... "Such things as imperfect memory, inability to recollect names and even extreme imbecility, to not necessarily deprive a person of testamentary capacity" provided that the testator's mind is sufficiently sound to understand the nature of the property being bequeathed... A will-maker can be unfair, capricious and even mean but still have testamentary capacity so long as the testator does not suffer from a mental disorder… "A testator has the right to treat hopeful beneficiaries unjustly", so long as there is testamentary capacity…

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