The Crazy Truth About Testamentary Capacity: Some Things Lawyers Should Know

Our society encourages people to stand up and fight for what they believe in. What happens when these people become unable to fight? As a Registered Nurse, I saw many cases of great men and women who were reduced to shells of their former selves due to declining capacity. I saw them trying to grasp the fact that they simply weren’t capable of doing many things they had been previously been able to do. As a lawyer who deals mainly with seniors, and as the national chair of the Canadian Bar Association’s elder law section, I witness many cases involving these seniors and those who take advantage of them.

For many, being taken advantage of is an all too true reality. For some, as the body deteriorates and the memory fades, people lose the ability to fully process the consequences of their actions. In an attempt to protect these individuals and their families, the government has enacted legislation to protect or at least limit the decisions which can be made by these individuals deemed to have inadequate testamentary capacity. These laws help prevent those with dementia from transferring property or executing contracts when they don’t fully understand what they are signing.

Here are three things that lawyers need to be aware of regarding capacity:

  1. It is state of being aware of the consequences of one’s actions;
  2. It can fluctuate with time of day or the day itself;
  3. Lawyers may be at risk for liability when providing legal services to someone with questionable legal capacity.

As lawyers, we need to make ourselves aware of the factors regarding capacity in order to provide proper legal advice. Our clients and the legal system depend on our judgment to be there for them even if their capacity is not there.

When evaluating the decision-making of a person with a mental disability, what should be the primary concern? Should we err on the side of safety and offer protection for groups deemed to be unable to make legal decisions? Or should people have the freedom to make their own choices, no matter what their IQ or cognitive abilities?

Both views have merit and are part of the universal debate which extends beyond the issue of capacity. To what extent should liberty be sacrificed in the name of safety? It may appear to be a simple concept but becomes significantly more complicated as the various factors come into play.

Consider that every action requires varying amounts of mental ability and degrees of consequences. This concept is discussed in the ruling of Justice Benotto in the 1997 Ontario case, Calvert (Litigation Guardian of) v. Calvert. ( In this case, Mrs. Calvert wished to separate from her husband despite claims of her being mentally incompetent:

“Separation is the simplest act, requiring the lowest level of understanding. A person has to know with whom he or she does or does not want to live. Divorce, while still simple, requires a bit more understanding. It requires the desire to remain separate and to be no longer married to one’s spouse. It is the undoing of the contract of marriage.”

From this statement, we see that there is a hierarchy of capacity required for various decisions. It is important to realize choices made by an individual are assessed for competency based on the process, not the ultimate decision being made. Even if the final conclusion is considered ludicrous or overtly risky, but the analysis of the situation was sound when making the decision, that decision will likely stand.

It is the right of Canadians to be able to make foolish or risky decisions. As Justice Benotto states: “The courts are slow to take away a person’s right to decide.”

As the base-level intelligence of any individual varies, it is in many ways challenging to measure. Currently, the laws in Canada are written in a way to protect those with a disability or mental impairment. Laws require an individual to be “mentally competent” in order to participate in many decisions.

Does this mean an individual born with a mental illness should not be able to make the same decisions as someone without that diagnosis? What about someone who has a normal or above-normal level of intelligence but becomes impaired due to an injury or illness?

The issue of capacity has serious repercussions in law, especially as our population ages and the dementia levels rise. They extend beyond the realm of lawyers and into the jurisdiction of lawmakers and human rights advocates. The goal is to not only make decisions that are legally sound, but which are also just.

As my practice focuses on these types of issues I would be very interested to hear your opinions or personal stories and experiences regarding capacity matters. As practitioners, we at times have the fate and wellbeing of our clients directly in our hands. This is one such instance…

Donna Gee