VANCOUVER, BC—(Marketwired – June 28, 2017) – Estate litigation is a tricky subject. As legal firm in Vancouver, the team at Kushner Law Group have published the first of a two–part series that will examine how judges try to understand the motivations and actions of a deceased person who cannot testify or give evidence for themselves when their will is challenged. For more, go to: http://kushnerlaw.ca/considering–testamentary–capacity–part–1/
When a litigant is unhappy with the distribution of an estate, one tactic that they may use to challenge a will is questioning whether the Deceased had the required “testamentary capacity” to make the changes in question. In other words, were they of sound mind? This tends to arise more frequently in cases of elderly testators or testators who make new or substantially revised wills immediately before their death.
Testamentary capacity is a thorny issue and the first thing to consider is if a challenge to testamentary capacity is truly warranted. In Bach Estate (Re), 2017 BCSC 548, Mr. Justice Kelleher summarized the law with respect to the meaning of the term “testamentary capacity” as follows:
 The meaning of testamentary capacity has not changed significantly since the often cited decision in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at 567. The meaning was recently put this way by Sigurdson J. in De Araujo v. Neto, 2001 BCSC 935 (CanLII) at para. 127, citing from Feeney's Canadian Law of Wills, 4th Ed. (Toronto: Butterworths, 2000) at 2.5:
To use the time–honoured phrase, a person must be “of sound mind, memory and understanding” to be able to make a valid will. When a will is contested on the ground of mental incapacity, the propounder must prove that the testator understood what he or she was doing: that the testator understood the “nature and quality of the act.” The testator must be able to comprehend and recollect what property he or she possessed, the persons that ordinarily might be expected to benefit, the extent of what is being given to each beneficiary and, finally, the nature of the claims of others who are being excluded.
More on this subject will be published next month. In the meantime, anyone involved in estate litigation is encouraged to seek advice from a professional lawyer who can explain their options and rights. To schedule a consultation, contact the Kushner Law Group today at 604–629–0432.
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The Kushner Law Group was founded on the principle that a small law firm should be able to offer the same level of legal advice as a big firm at an affordable cost. A unique combination of legal experience and creativity allows the professionals at Kushner to come up with creative and practical solutions for a variety of legal problems.
For additional information, please visit http://kushnerlaw.ca/ or call 604–629–0432.