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Medical science is triumphing over human nature by helping us live longer.  The problem is that while our lives are longer, we cannot always maintain our mental abilities.  So as lawyers we are often asked to go to court to determine whether someone has or had capacity.

Did He Or She Have Capacity?

Family members who have been disinherited or who are fighting for control over their parent’s property while the parent is still alive all ask the same question. Did he have capacity?  It’s the wrong question or rather an incomplete question.  Better asked –

  • Did the deceased have capacity to make a will? or
  • Does the person in question have the capacity to manage property?  or
  • Did he have capacity to marry? or
  • Did he have capacity to  appoint a power of attorney? or
  • Did he have capacity to decide on medical care?

Test For Capacity

What makes the issue even more complicated is that, depending on the task in question, the test for capacity is different.  For example, one may have the capacity to marry, but not have the capacity to manage personal property.  One might be able to manage his/her own property but not have the capacity to make a will.

To address this issue, lawyers have to know the different tests for capacity specific to each task.

For example:

Capacity to manage property is the ability to understand the information that is relevant in making a decision in the management of one’s property; and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of a decision.

Capacity to manage personal care is the ability to understand the information that is relevant to making a decision relating to health care, nutrition, shelter, clothing, hygiene or safety; and the ability to appreciate the reasonably foreseeable consequences of a decision or lack of decision.

In the common law the capacity to marry was roughly equivalent to the capacity to enter into any binding contract.

One author answers the question “what is testamentary capacity” as follows, “To use the time-honoured phrase, a person must be “of sound mind, memory and understanding” to be able to make a valid will. Those trying to prove the validity of a last will and testament must prove that the will-maker understood what he or she was doing and that the will-maker understood the “nature and quality of the act.” It must also be shown that the will-maker was 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.”

Consequences Of Court Findings On Capacity

Depending on the case, there may be grave consequences arising out of a court’s findings about capacity.  If the will-maker did not have capacity to make the will, then that document is invalid.  The previous will might govern even if it distributed the inheritance very differently.

If the person no longer has capacity to manage his property, the person holding a power of attorney might take over.  If the person had the capacity to marry, then his/her new marriage might revoke all prior wills. The new spouse may also receive a preferential share of the estate and part of the distributive share if there is no valid will.

The Next Steps

This short overview is not intended to serve as a comprehensive treatment of the topic of capacity.  It is not meant to be legal advice. The definitions of capacity provided above were simplified and in some textbooks full chapters are devoted to each topic.

Every case turns on its specific facts and it would be a mistake to conclude how it might impact on your case. Nothing replaces retaining a qualified, competent lawyer, well versed in is this niche area of practice and getting some good legal advice.

The next step is to meet with a qualified lawyer who will thoroughly investigate the facts and explain your legal options.

Based on the nature of our practice and experience our office deals with many potential clients who feel wronged and want to challenge a will.  For some we discourage proceeding because their case may be too weak or because the risk is not worth the reward.  For others we point out facts and legal issues that they had not considered that bolster their case and merit proceeding to court.

The bottom line – nothing replaces seeking out the counsel of a qualified lawyer who specializes in this niche area of the law and has the expertise to guide you in your decision making process.  It’s not just about the law.  It’s also about knowing the process well enough to determine whether the prospects of success warrant the economic and emotional investment.

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