What are Capacity Claims in Ontario?
Ontario’s Succession Law Reform Act and the Substitute Decisions Act govern the rules to prepare and validate a will. In order to make a legal will you must be over the age of 18. If you are under the age of 18 and want to prepare a will then you must either be married or contemplating marriage (where a will is not validated until the marriage takes place), be a member of the Canadian Armed Forces or be a sailor at sea. Individuals who want to prepare a will must also have the mental capacity to prepare a will (defined more under the Substitute Decisions Act). If you need to advance a capacity claim we recommend you contact a Richmond Hill estate litigation lawyer to assist you with your legal proceedings. We also recommend you review the Ministry of the Attorney General’s website to read more on what’s involved in capacity assessments.
What are Capacity Assessments and Capacity Claims?
Capacity assessments are a formal assessment of a person’s mental capacity to make sound decisions regarding property and personal care. Whereas, capacity claims arise when family members or individuals who were close to the deceased feel they were unjustifiably treated or completely left out of a will due to the fact that the deceased may not have been mentally capable at the time the will was prepared. However, there must be evidence to support this in order for the claim to be successful and this is something an estate litigation lawyer can assist with.
What do Ontario courts look at when determining capacity?
In Ontario – the courts require different things to be proven depending on the subject of the claim. Here are some elements that may need to be reviewed and considered in order for a capacity claim to have legal merit.
- Capacity to make a power of attorney or a will: This is commonly known as testamentary capacity. Evaluating whether the deceased was of sound mind, memory and understanding at the time the will was written is very critical. The courts will need to establish whether the deceased understood what they were doing regarding the nature and quality of the act. The courts will also review if the person was able to comprehend the property and assets they owned, their beneficiaries and what was being allocated to each beneficiary and why others were excluded in the will.
- Capacity to manage property: In order for a person to have capacity to manage property an individual must understand the information that was relevant in making decisions with respect to property management and had the ability to understand the possible consequences of their decisions. The courts will review the facts and attempt to establish whether this was apparent or not.
- Capacity to manage personal and medical care: In order for a person to have capacity to manage their personal and medical care, the person must also have been able to understand relevant information when making decisions with respect to health care and also understand the possible consequences of their decisions. The courts will review the facts and attempt to establish whether this was apparent or not.
- Capacity to marry (or enter a contract): In order to satisfy the validity of a contract – the parties must be able to understand the full meaning and effect of the contract they are agreeing to. A contract made by someone who is not mentally capable (as per the court’s definition) will generally not be considered a valid contract.
What happens when the testator is deemed to not have capacity?
If the court decides that the testator did not have capacity to make the will, the will may be considered invalid. In situations like this there are a series of situations that may result including but not limited to:
- Re-instating a previous will that may have replaced the final will
- A personal representative may be eligible to take charge of the finances or property
- If an individual dies without a will and was married – the spouse may receive a substantial amount of the estate
- If an individual was married and had a will – then the new marriage might replace prior wills
Contact a Richmond Hill estate litigation lawyer regarding your capacity claim
Estate litigation matters can be complex to navigate without legal guidance from a lawyer who knows how estate litigation processes work. We recommend you hire an estate litigation lawyer if you are dealing with or about to commence a capacity claim. Contact Blackburn Lawyers today for a consultation if you require legal assistance. You can book a consultation by calling 905-884-9242 or filling out an online consultation request here.
Disclaimer: Please note this article is only intended to act as a general overview on a legal topic and
does not constitute legal advice. For individual legal advice specific to your situation – please speak
directly with a lawyer for legal advice as every situation is different.