Brian Madigan LL.B., Broker

RE/MAX West Realty Inc.,
Independently owned and operated

96 Rexdale Blvd. 
Toronto, Ontario 

Phone: 416-745-2300

Cell: 647-404-8150 
Toll Free: 1-888-507-0817

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Capacity to Make a Will in Ontario

September 30, 2013 - Updated: September 30, 2013



The question of what constitutes the test for mental capacity seems well-settled.


The English Court in the precedent setting case of Banks v. Goodfellow in 1870, stated:


  1. the testator must understand the nature of the act and its effect;


  1. the testator must understand the extent of his property;


  1. the testator must be able to understand and appreciate the claims of those around him, to which he should be giving effect; and


  1. there is no "disorder of the mind that shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."


Roughly, 140 years later, that’s still the test in Canada.


As you might expect, a good deal of medical evidence is now available to be called concerning delusions and disorders. But, aside from that, a Court will seek to protect a testator’s right to make a Will.


Being simply vexatious, vindictive or mean spirited is not enough to deprive someone of this right.


Estate litigation is difficult because the date of determination for mental incapacity is the date of the making of the Will and not the date of death. So, that could be perhaps 10 to 15 years earlier.

In essence, the legal test is based upon:

1)      the understanding that you are about to sign a Will,

2)      how much property you have,

3)      who your reasonable beneficiaries might be,

4)      no mental disorder which prevents the use natural faculties, and

5)      no insane delusions which alter the normal decisions,


Brian Madigan LL.B., Broker                                       




Tagged with: estates. wills testamentary capacity ontario law
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Brian Madigan LL.B. Broker

RE/MAX West Realty Inc. Brokerage

Independently owned and operated

96 Rexdale Blvd. , Toronto Ontario,

Phone: 416-745-2300

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