Understanding Testamentary Capacity in BC

When disputes arise over a will, one of the most common issues in estate litigation is testamentary capacity. In British Columbia, determining whether a person had the mental ability to make a valid will can be complex, particularly in cases involving cognitive decline, dementia, or advanced age.

What is Testamentary Capacity?

Testamentary capacity is the legal ability to make a valid will. In BC, the law requires that the testator:

1. Understands that they are making a will
2. Comprehends the extent of their estate — understanding what assets, bank accounts, or real estate they own
3. Recognizes the claims of potential beneficiaries — knowing who might expect to benefit from their estate and the relationships involved
4. Understands the manner in which their estate will be distributed.

Importantly, capacity to make a will is different from capacity to manage finances or personal care. A person may be unable to handle daily affairs but still have sufficient understanding to make decisions about their estate.

Why Testamentary Capacity Matters in Litigation

When a will is challenged, the court examines evidence from:

• Medical professionals who attest to cognitive ability
• Witnesses and lawyers who interacted with the testator
• Documents such as draft wills, checklists, or notes indicating the testator’s understanding

If the court finds the testator did not have capacity, the will can be declared invalid, and the estate may pass according to an earlier will or, if there isn’t one, under intestacy laws.

Case Study: Lavictoire v Schwarz, 2025 BCSC 2565

This BC Supreme Court case highlights the complexities of disputes over testamentary capacity.

In May 2012, Zofia Rymgaillo made a will just weeks after her granddaughter (the “Plaintiff”) applied for a committeeship, claiming Zofia could not manage her person or finances. At that time, two doctors had sworn affidavits stating that Zofia was medically incapable of managing her affairs. Despite this, her 2012 will distributed her estate among nieces, nephews, and grandchildren, replacing a 2006 will that had left everything to her two sons (both deceased).

The plaintiff challenged the will on grounds of incapacity, lack of knowledge and approval, and undue influence, but the court focused on testamentary capacity, which can exist even when a person cannot manage daily affairs. Zofia’s medical records showed progressive dementia, delirium, hallucinations, and confusion about basic facts, including her home, the value of her assets, and everyday expenses.

At the time the will was drafted, steps were taken to assess her understanding. Notes indicated she appeared to understand the nature of the will and her family relationships, and the terms of the will were later explained to her in her first language. However, the court found that the documentation was insufficient to demonstrate that she fully comprehended her assets and the consequences of the will, and the involvement of family members in providing instructions raised concerns about whether the will reflected her independent decisions.

The Court’s Judgment

The BC Supreme Court declared the May 2012 will invalid due to lack of testamentary capacity. Key findings included:

1. Zofia’s cognitive decline was significant, and medical evidence showed she did not understand the extent of her property or the consequences of the will
2. The notes from the will-making process were insufficient to prove she fully understood her assets and the effect of the will
3. Family involvement in drafting instructions raised questions about the independence of her decisions

The court emphasized that when a testator is elderly or cognitively impaired, capacity must be carefully assessed, and procedural safeguards — such as detailed questioning, independent verification, and thorough documentation — are essential.

What This Means for You

In BC, many will challenges turn on these factors. Whether you are defending a will or considering a challenge, having experienced estate litigation guidance is crucial. Early and thorough preparation, careful collection of evidence, and strategic legal advice can significantly affect the outcome of testamentary capacity disputes.

If you are facing a dispute over a will or are concerned about a loved one’s estate, contact our experienced Estate Litigation team for a free consultation.