Practical Strategies and Best Practices For Drafting Solicitors in Assessing Testamentary Capacity

Solicitors working with clients to draft Wills and create estate plans are in an optimal position to deal with anticipated probate litigation. This blog will set out the law on testamentary capacity and techniques to create and preserve evidence to fend off challenges. Also discussed are the implications of a lawyer’s duty to a client when receiving instructions and conducting assessments.¹

I. Testamentary Capacity

Capacity is the mental ability to understand and perform a certain act, and involves both medical and legal considerations depending on the context. For example, the threshold for testamentary capacity is the highest as opposed to the capacity threshold required to make a Continuing Power of Attorney for personal care or for property management, which invites a lower threshold.² Testamentary capacity means that the testator or testatrix is of “sound mind, memory, and understanding” at the time that the Will was made.³ Whether an individual has or lacks testamentary capacity is entirely a question of fact. As observed in the seminal English case of Banks v. Goodfellow,⁴ a testator possesses testamentary capacity if:

1. the testator understands the nature of making a Will and its effects;
2. the testator understands the extent of the property being disposed of;
3. the testator understands the nature of the act and its effects;
4. the testator appreciates the claims to which he or she ought to give effect; and,
5. finally, no insane delusion influences his or her will in disposing of the property and brings about a disposal of which, if the mind had been sound, would not have been made.

Despite the Banks being decided a century and a half ago, it nonetheless continues to be cited as an authority on testamentary capacity in Canada.⁵

Importantly, the Will itself need not reflect rational decision-making. The testator can act as whimsical or irrational as they please so long as they are of sound mind when doing so. Indeed, where the testator has made a Will that meets the formalities required by the relevant legislation, it is presumed that the testator knew and approved of the contents, and had the necessary testamentary capacity to make the Will.⁶ However, where “suspicious circumstances” are present, that presumption is rebutted and the propounder of the Will is once more tasked with the legal burden of proving the Will “in solemn form” including that the testator had the requisite  testamentary capacity.⁷

II. Best Practices For Lawyers In Assessing Testamentary Capacity

1. Lawyer’s Duties in Assessing Testamentary Capacity

Prospective testators usually face their first capacity assessment by his or her lawyer at the time that instructions are provided for the Will. The lawyer who prepares the Will must take affirmative steps to ascertain whether the client has the requisite capacity to provide instructions for the drafting of the Will. In addition to ensuring all aspects of the Banks v. Goodfellow test have been satisfied, a lawyer should ensure that the client has knowledge of and approves of the provisions in the Will, the formalities of the Will have been met, and that the solicitor does not suspect any apparent undue influence or fraud.⁸

In Murphy v. Lamphier,⁹ Chancellor Boyd provided the following two comments regarding a lawyer’s obligations in these contexts:

A solicitor is usually called in to prepare a will because he is a skilled professional man. He has duties to perform which vary with the situation and condition of the testator. In the case of a person greatly enfeebled by old age or with faculties impaired by disease, and particularly in the case of one labouring under both disabilities, the solicitor does not discharge his duty by simply taking down and giving legal expression to the words of the client, without being satisfied by all available means that testable capacity exists and is being freely and intelligently exercised in the disposition of the property. The solicitor is brought in for the very purpose of ascertaining the mind and will of the testator touching his worldly substance and his comprehension of its extent and character and of those who may be considered proper and natural objects of his bounty. The Court reprobates the conduct of a solicitor who needlessly draws a will without getting personal instructions from the testator, and, for one reason, that the business of the solicitor is to see that the will represents the intelligent act of a free and competent person.¹⁰

And:

[I]n drawing the will of one of considerably impaired or of doubtful capacity, the solicitor should regard himself as the professional alter ipse of his client, and seek to touch his mind and meaning and memory, to learn of the property to be dealt with and of the usual objects of his regard, as far as may be, by such questioning as shall elicit particulars, and thus to satisfy himself that he has done or tried to do all in his power to find out the real situation. Nor is it a counsel of perfection to suggest that a memorandum of results, apart from the formally expressed will, should be jotted down and preserved. The solicitor may in some perfunctory way go far enough to satisfy himself as to capacity, but it is to be remembered that his duty is to go far enough to satisfy the Court that the steps he took were sufficient to warrant his satisfaction.¹¹

These comments are routinely quoted in Canadian jurisprudence.¹² In addition to the above, Justice Kroft in Friesen v. Friesen¹³ provides an apt summary of a solicitor’s duty in this context:

The duty upon a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous.

A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself by a personal inquiry that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.¹⁴

Despite a lawyer’s professional obligations and duties to a testator, studies have shown that how lawyers conduct testamentary capacity tends to be inconsistent and sometimes even negligent.¹⁵ For example, a study of solicitor related negligence in Will challenge cases found that lawyers were most likely to have been found to have breached their duty of care in ascertaining testamentary capacity by failing to:

1. sufficiently interview the client to an extent that would establish the essential elements of capacity. This includes being too general in inquiring into each element of the Banks v. Goodfellow test;
2. obtain a mental status examination or proper medical information regarding the testator;
3. ascertain the existence of suspicious circumstances (a fundamental element of the lawyer’s duty of care);
4. react properly to the existence of suspicious circumstances which requires a greater in-depth assessment to be undertaken;
5. properly record or maintain their notes of instructions, including the date and location of where the meeting was held;
6. provide proper interview conditions for the testator, such as ensuring any interested parties are not present when instructions are given;
7. ensure a proper and arms-length relationship between the lawyer and the testator. For example, lawyers who prepare a relative’s Will may be unable to be truly objective and unbiased based on their own interests; and,
8. take steps to test for capacity at all.¹⁶

The results of the study reveal that lawyers tend to make the same mistakes in these situations. As a result, a summary of suggestions for best practices and questions are explored below.

2. Recommended Practices For Ascertaining Testamentary Capacity¹⁷

 At the outset it is important to ensure that the questions are open-ended questions as these provide the testator with a better opportunity to demonstrate their knowledge of the situation. The questions should be concise, simple, and asked in a straightforward manner. The testator should be made comfortable and any accommodations for language barriers or other special needs should be made in advance of the meeting. It is also important to ask why the testator is providing certain instructions as this will provide an opportunity to understand. As noted in Murphy v. Lamphier, a lawyer cannot simply go through the motions and rely upon perfunctory questions; more is required. Further, detailed notes of each and every meeting, including the location, the date, and the parties present, should be taken by the lawyer conducting the meeting.

a) Acquire General Information

• • Name of the client;
  • Date of birth and current address;
  • Languages spoken and preferred language for communicating;
  • Education/occupation history;
  • Make notes surrounding the client’s appearance at each meeting (were they dressed appropriately? Did their appearance start to decline over subsequent meetings and was this in conjunction with any other red flags?); and,
  • Make notes regarding who called to make the appointment for the individual.

b) Family Background

• • Obtain a family tree from the client if possible;
  • Determine the nature of client’s relationship with their family members and whether there are any significant dependencies on any of the family members;
  • Determine whether there are any tensions or conflicts among the members of the family. If so, ensure that the client has an informed understanding of the conflicts and how they may impact their Will; and,
  • If there are any concerns with capacity, it may be helpful to interview family members who can provide more information about the testator (however, one needs to be cognizant and remain mindful about the potential of undue influence or suspicious circumstances from a family member).

c) Medical History

• • Note the age of the client;
  • Inquire into the general medical health and current medical conditions of the client and take note of any physical incapacities, hearing or visual difficulties;
  • Document your initial assessment of the client’s general mental health;
  • If appropriate, review medical records to ascertain the extent of any medical conditions identified or suspected, i.e. dementia; and,
  • Determine if an expert capacity assessment may be useful and suggest this option to the client.

d) History of Testamentary Dispositions

• • Ensure to receive, review, and file any prior Wills, codicils, separation agreements, cohabitation agreements, etc. One should make prudent inquiries as to why the client wishes to make a radical or marked departure from previous iterations of the Will;
  • Obtain and document the names of any former lawyers who prepared any past Wills for the client; and,
  • Inquire into the relationship of the client with past lawyers who prepared their Will, i.e. were they relatives, were they directed or heavily steered to that lawyer from a family member who has or had a relationship with that lawyer?

 e) Instructions From the Client

• • Ascertain that the instructions are truly the client’s wishes and whether a family member or a third party helped prepare the instructions in a substantive manner;
  • Whenever possible, ensure that only the client is present for the meeting as opposed to family members or other interested parties being present;
  • Ask the client, and make detailed notes, about their understanding of the nature of the Wills and their motivation and rationale for specific provisions, specific bequests, and gifts of residue;
  • If there are any inconsistencies or contradictions between the client’s instructions and the rationale and motivation that they previously communicated make inquiries as to why that may be and ensure that the client has an informed knowledge and approval on the provisions of the Will;
  • Ensure that the client will provide an exhaustive list of their assets, including assets that may not be dealt with in the Will, and their values; and,
  • Inquire as to how the dispositions will impact family dynamics and relationships. Put another way, ensure that the client understands and appreciates the consequences of the Will in its current form.

f) Red Flags

• • Observe and document any suspicious circumstances that may be present;
  • If another person was present during the meeting, ensure to document their relationship to the client and what role they had, if any, in preparation of, and during, the meeting;
  • If the age of COVID-19 and virtual meetings, clearly ask the client if anyone else is present with them, whether anyone is off camera, or whether anyone may also be listening in on the meeting; and,
  • If you received written instructions in advance of the meeting, assess whether the instructions were prepared by the client.

g) Other

• • Ensure to make note of the execution of the Will and its compliance with all legislative formalities;
  • Document whether any diagnostic screening tests were used in the assessment as well as any tests used to determine if undue influence is a concern; and,
  • Document whether any consideration was given to referring the testator for a medical assessment and why such a reference was or was not made.

After adhering to the above suggestions and practice, lawyers may find themselves wondering if they can outright refuse to prepare the Will because they believe that the client lacks testamentary capacity. Such an inquiry is a difficult one, as it has been observed that although lawyers have a duty to satisfy themselves that the client has testamentary capacity, it is the court who ultimately makes the decision regarding capacity.¹⁸

It is generally seen as acceptable to outright refuse to draft the Will if the lawyer is convinced that the client lacks testamentary capacity. However, in situations where the lawyer is uncertain about the capacity it has been suggested that the Will should be drafted and the lawyer should take copious notes concerning the situation to assist the court in any future matter concerning the client’s capacity. In Scott v. Cousins, the court remarked on the duty of lawyers in such situations, and stated the following:

The obligations of solicitors when taking instructions for wills have been repeatedly emphasized in cases of this nature. At the very least, the solicitor must make a serious attempt to determine whether the testator or testatrix has capacity and, if there is any possible doubt – or other reason to suspect that the will may be challenged – a memorandum, or note, of the solicitor’s observations and conclusions should be retained in the file: see, for example, Maw v. Dickey; Eady v. Waring; Murphy v. Lamphier. Some of the authorities go further and state that the solicitor should not allow a will to be executed unless, after diligent questioning, testing or probing he or she is satisfied that the testator has testamentary capacity. This, I think, may be a counsel of perfection and impose too heavy a responsibility. In my experience, careful solicitors who are in doubt on the question of capacity, will not play God — or even judge — and will supervise the execution of the will while taking, and retaining, comprehensive notes of their observations on the question.¹⁹

The case of Hall v. Bennett Estate²⁰ also provides helpful guidance by the courts on this issue. In Hall, the lawyer visited a terminally ill client at the hospital to prepare a Will. During their meeting, the client continuously slipped in and out of consciousness, but was lucid and clear with the lawyer when awake. The client instructed the lawyer to exclude his daughter and grandchildren, as well as make a specific gift to the plaintiff. The lawyer eventually stopped the meeting and declined to draft the Will due to fear that the client was unable to give informed and complete instructions due to his current condition. The client died later that day.

The plaintiff, who would have received a gift if the lawyer drafted and executed the Will, sued the lawyer for negligence. The trial judge held that the lawyer was liable in negligence on the basis that the client did understand the effect of the Will, disclosed the nature of the property he wished to dispose of by the Will, and thereby had capacity in instructing the lawyer to draft the Will. The decision was appealed.

The Court of Appeal reversed the lower court’s judgment and held that the lawyer had acted prudently and reasonably. The Court found that in light of the circumstances it was the lawyer’s duty to decline the retainer and refuse to draft the Will. More specifically, the Court noted:

As stated earlier, it is well settled that a solicitor who undertakes to prepare a will has the duty to use reasonable skill, care and competence in carrying out the testator’s intentions. This duty includes the obligation to inquire into and substantiate the testator’s capacity to make a will. This first obligation is of fundamental importance. After all, if the testator does not have the requisite testamentary capacity, the preparation of a will in accordance with his expressed wishes at the time may only serve to defeat his true intentions.²¹

In these circumstances, and assuming there is time to do so, a lawyer may wish to have a formal capacity assessment conducted. However, it should be generally noted that lawyers are afforded a reasonable degree of deference in making such a call.²²

 III. Conclusion

It has been predicted that Will challenges relating to testamentary capacity will almost certainly spike in the coming years due largely in part to Canada’s aging population. Not only is there a growing elderly population to such an extent that seniors now outnumber children,²³ but as this generation passes away Canadians will find themselves as the recipients of the largest ever intergenerational wealth transfer in Canada’s history, which will undoubtedly give potential litigants even more motivation to litigate.²⁴ In light of the foregoing, it is more critical now more than ever that drafting solicitors ensure that they are zealously adhering to their duties and ensuring testamentary capacity is present when preparing testamentary documents.